BP2001/379, Transcript of Proceedings [2001] AIRCTrans 325 (21 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

BP2001/379-388

APPLICATION FOR CERTIFICATION OF AGREEMENT

APPLICATION UNDER SECTION 170MW OF THE ACT
BY THE CONSTRUCTION FORESTRY MINING AND ENERGY UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL AND PLUMBING AND ALLIED SERVICES UNION, AND AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION TO SUSPEND OR TERMINATE BARGAINING PERIODS

BRISBANE

9.35 AM, FRIDAY, 2 MARCH 2001

PN1

MR J. MURDOCH: If the Commission pleases, MURDOCH is my name. I am a barrister and I appear with MS ARNOLD for BHP Coal Proprietary Limited.

PN2

MR S. CRAWSHAW: If the Commission pleases, I seek leave to appear in each of the matters for the CFMEU. I have with me MR SLEVIN.

PN3

MR D. O'SULLIVAN: If it pleases the Commission, I appear for the CEPU.

PN4

MISS L. NADJ: I appear for the AFMEPKIU.

PN5

THE COMMISSIONER: Thank you. Mr O'Sullivan, do you need leave?

PN6

MR O'SULLIVAN: No. I am an employed industrial officer of the organisation.

PN7

THE COMMISSIONER: Well, where there is an application for leave, leave is granted. Mr Murdoch?

PN8

MR MURDOCH: Commissioner, the applications before the Commission today are at the request of my client. My client seeks today to pursue interim relief and we seek that relief to cover the period between now and the hearing and determination of the application to terminate the bargaining periods. The relief that we seek in specific terms on this occasion is in the nature of interim relief, and we ask that the Commission suspend the bargaining periods pending the final determination of the applications.

PN9

So far as the applications are concerned, we seek an early listing of the matters to enable them to be fully heard and determined and, for our part, we are in a position to proceed with expedition and I can advise the Commission that we would be in a position to file and serve the affidavits of the anticipated 10 or 12 deponents in support of the application, the substantive application, early next week. Therefore, depending upon the Commission's convenience, we would not necessarily seek a lengthy period of suspension; however, our case is that on a balance of convenience, there ought to be a suspension pending the final hearing and determination of the applications proper.

PN10

So far as the application before you today is concerned, I will be reading the affidavit of Gregory William Gerard and relying on it. So far as the actual form of relief that we seek, I will hand up a draft of the order.

PN11

THE COMMISSIONER: I will just mark the draft order as BHP1.

EXHIBIT #BHP1 DRAFT ORDER

PN12

MR MURDOCH: Commissioner, you will note that the final part of the order which deals with commencing time and duration is blank because, naturally, we can't pre-empt when, or if, the Commission would make such an order, nor can we pre-empt the time that is necessary to enable a final hearing and determination of the matter, but that is the intent in relation to that clause.

PN13

The form of the order has followed the order issued by Munro J who suspended a bargaining period in similar interim circumstances, the case there being the Australian Industry Group v Automotive Food Metals Engineering Printing and Kindred Industries Union and Others, print S9711, that being a decision given on 29 August 2000, and the order has a separate print number, that being print S9710. It might be convenient, Commissioner, to hand up a short volume containing four cases, one of them being the AIG case and including the order. The order appears under tab 1. It is described as an interim order.

PN14

I don't intend reading that interim order of Munro Js to you, Commissioner, but if you have the opportunity to read it for yourself, you will observe that we have followed very closely the Munro template for such an interim suspension order.

PN15

Commissioner, I have referred to my client's application. That was filed on 26 February 2001. Might I read that in a formal way? And I also read, in a formal way, the letter dated 27 February 2001 from Blake Dawson Waldron to the Registrar requesting the listing of the matter for the purpose that it is before you today.

PN16

THE COMMISSIONER: I will mark that letter, Mr Murdoch. It will be exhibit BHP2.

EXHIBIT #BHP2 LETTER DATED 27/02/2001

PN17

MR MURDOCH: Commissioner, I then - I'm sorry.

PN18

THE COMMISSIONER: You're right, Mr Murdoch.

PN19

MR MURDOCH: I then read the affidavit of Gregory William Gerard.

PN20

MR CRAWSHAW: Well, before we come to any evidence, can I just make these points: that we've seen the order for the first time today when it was handed to you, Mr Commissioner. True it is that we had notice that some sort of interim relief was going to be sought. It's still not clear to us what is meant by seeking interim relief in the sense that there's power in Section 170MW to suspend or terminate the bargaining period. What is sought today is a suspension. We don't understand what is the difference between a suspension and an interim suspension or if there is one. In other words, the application by my learned friend on behalf of his client has not spelt out what is meant by interim relief, and whether that has a different test to what an application for suspension without a mention of interim relief would have.

PN21

If it is suggested that there's a power in Section 170MW to provide relief additional to or in any way different from the power to suspend that's contained therein, we would resist that proposition as a matter of jurisdiction and put arguments to you on that point. The other matters that arises from the application is this: that the application we've received purports to be in the form set out under the rules in Form R42 in that it has the application and it provides for the grounds. Grounds 1 to 7 are merely recitation of fairly mundane factual matters in terms of the case. In terms of the actual relief sought, the grounds that are relevant - the only grounds that are relevant are grounds 8, 9 and 10 and they in turn are mere recitations of the wording of subsections 2 and 3 of Section 170MW.

PN22

There's no grounds in the application as to how those particular subsections are made out and there's no particulars of the grounds as are required by form R42 and Rule 60, so we come to you this morning really guessing what the case is about. We've got Mr Gerard's affidavit's been served and it talks about in rather vague terms some damage to the central Queensland colony, whatever that might be, but apart from that, we're in the dark as to what the case is all about, and we submit that those two points should be addressed first. Firstly the question of whether there is a distinction between interim relief and suspension or between an interim order for a suspension and an ordinary order for suspension, if I can use that word, and secondly what the particulars of the grounds for the application are so that when Mr Gerard is called, we know what the case is about and we know what his evidence is meant to go to and then I can get proper instructions on that.

PN23

I'm not suggesting in this latter regard that the case need go over to another day, but I need to get proper instructions once we know what the case is about. And also have to work out which evidence we're going to call once we know what the case is about. But, really, as a matter of procedural fairness, and I notice you use those words in refusing to have it listed earlier than today, we should know what the case is about and also know about, and I include within that what's the magic of these words interim order in a case such as this.

PN24

THE COMMISSIONER: Mr Murdoch?

PN25

MR MURDOCH: Commissioner, I'll be dealing with those matters in submissions. I've supplied a draft order. We filed Mr Gerard's affidavit. My learned friend has had it for a couple of days. I've supplied cases to the Commission and to my learned friend. They deal with precedents from, for example, Munro J who deals with the Commission's powers to make an order of this kind and we have adopted the order from the Munro template, so that in my submission it would be inappropriate to bog the matter down, burn time, which of course would suit my learned friend's clients - - -

PN26

MR CRAWSHAW: Well, I object to that suggestion that I'm burning time. I have an ethical responsibility not to do that. I just seek procedural fairness.

PN27

MR MURDOCH: Commissioner, my learned friend will have adequate procedural fairness in that he's had the draft order furnished to him. He's had the benefit of Mr Gerard's material in affidavit form and I propose to call Mr Gerard. If he wishes to cross-examine him he may do so.

PN28

THE COMMISSIONER: Do I take it, then, Mr Murdoch, that there are no other grounds being advanced, other than the evidence that Mr Gerard will give?

PN29

MR MURDOCH: That's in relation to today?

PN30

THE COMMISSIONER: Yes.

PN31

MR MURDOCH: Yes. I will ask him when he's in the box to give some brief evidence in relation to events since the filing of his affidavit, but that will be very brief and will cover the issue of depletion of coal stocks at the port at Hay Point and the extension of the strike to contractors' employees at the various mine sties.

PN32

But I've emphasised that when we come to the hearing in relation to the termination, the substantive termination application, we anticipate having some 10 to 12 deponents. But in relation to today's matter, which is in relation to suspension for a limited period, we rely on Mr Gerard's evidence as enlarged in relation to the two matters that I've flagged to you. So, Commissioner, with that in mind I'd propose to call Mr Gerard.

PN33

MR O'SULLIVAN: Mr Commissioner, if I could just rise at this point in time. I heard Mr Murdoch make reference to a draft order which had been served upon the CFMEU. I've gone through the material which I've received. I've seen an application setting out the grounds and reasons supporting some sort of application pursuant to section 170MW, but at this point in time nothing has been filed that I can see in the correspondence that I've received which indicates a draft order. May I say pointing out to the Commission that - - -

PN34

THE COMMISSIONER: You should have got one, Mr O'Sullivan, this morning. It was handed - - -

PN35

MR MURDOCH: They were distributed this morning.

PN36

MR O'SULLIVAN: I just thought that from Mr Murdoch was saying that it was handed out before these proceedings had commenced.

PN37

MR MURDOCH: It was never said. They were distributed this morning.

PN38

MR O'SULLIVAN: Well, I - if that's the case, well - - -

PN39

THE COMMISSIONER: Would you like another one?

PN40

MR O'SULLIVAN: No, no, I've got one. I just thought there might have been a draft order handed out earlier.

PN41

MR CRAWSHAW: Well, I can well see why my friend might have got that impression because Mr Murdoch was using the fact that he'd give us an order today to suggest we knew what the case was about and the implication was that somehow in advance we'd - we've got to divine what the case is about. As I interjected what - this is not about time wasting. I specifically said I wouldn't envisage that we'd need a lot of time and I'm not talking about going past today. What we need to know is what the case is about.

PN42

Now, normally when someone brings a case to this Commission, there's either contentions or for a start there is normally proper grounds. There's normally particulars of the grounds that they're required by the rules: that hasn't happened here. Secondly, there is either contentions or at least when the case begins there's an opening by the applicant, and what my friend is refusing to do is to open this case at all on the grounds that that's going to waste time. Now, all we want to know is what the case is about.

PN43

He's saying, "Well, you'll hear about that after the evidence has been called": that's not good enough. If he wants to save time, he can tell us what the case is about now as is normal and then he doesn't have to repeat himself later in submissions. The only benefit for the applicant in adopting the course my friend suggests is that it will keep both the respondents and the Commissioner in the dark until after the evidence is called.

PN44

THE COMMISSIONER: Are you in a position to make an opening as to what the case will be, Mr Murdoch?

PN45

MR MURDOCH: Commissioner, I'm in a position to make an opening, but I'm not falling for the three card trick of wasting the day on a succession of lobs of the tennis ball from one side to the other. It's well established in tribunals and courts that where orders are sought in the context of relief for a short period where there is an urgent matter necessarily conducted pending the final hearing and determination of a matter that one is not expected to provide contentions, lengthy particulars etcetera. Now, there was no request prior to this morning emanating from my learned friend for particulars.

PN46

He had the benefit of the request noting the basis upon which we sought to have the matter come here. He had the benefit of the other materials we filed: if he wanted particulars he could have sought them. So far as the application is concerned, Commissioner, I'll say it again: we're relying on the material in Mr Gerard's affidavit. That demonstrates that, among other things, the company and the community are suffering very substantial loss.

PN47

It also demonstrates that whilst there has been a series of attempts over a very long period of time to have negotiations between our client and the three unions aimed at securing certified agreements at the various mine sites, the situation has deteriorated very rapidly over the past few weeks, and that deterioration has coincided with the development of a campaign promoted by the umbrella organisation to which the three unions are affiliated namely the ACTU. And that campaign is directed towards tarnishing the image of my client and establishing, among other things, that BHP is a bastard to employ the language utilised in the correspondence that we've attached to Mr Gerard's affidavit.

PN48

So that what we've had has been a situation where if there was an enterprise bargaining process that was genuine, if there was, that's been subsumed in a campaign conducted at corporate level against my client and a campaign which has as its object a denigration of my client as a corporate citizen and an attack on the entity in relation to all of the industries whether they be steel, iron ore or coal in which the company conducts its business. Now, in my submission, that is established on the material that we annexed to Mr Gerard's affidavit.

PN49

So there are no surprises; the material is there and the material emanates from my learned friend's client and the umbrella body to which it's affiliated. So, Commissioner, this is a situation where we have in my submission a strong case that there is a strike; that strike is not part of a genuine attempt to secure enterprise agreement. The strike in our submission is one which pursues other objectives, but which in a very cynical way attempts to become cloaked as protected action utilising as a vehicle or a matter of convenience, the bargaining period and a purported attempt to take protected action.

PN50

So, Commissioner, that is the history of recent events in the industry and in the other industries in which my client operates: that's the basis upon which we come here. Might I say also that we will also rely in support of the quest for interim relief on the way in which the various parties responded to your strong recommendation which was issued on 22 February 2001, and that's GWG10 to Mr Gerard's material. Your recommendation, in strong terms, Commissioner, was that none of the negotiating parties give notice of intention to take industrial action and that none of the negotiating parties make any applications to the Commission ie tactical applications related to the current negotiation until after Monday's report back.

PN51

Commissioner, my client has complied to their disadvantage, I might say. My learned friend's client, in co-ordination with the other two unions, took no notice, it appears, of your recommendation, and took steps last Friday to give notice of the intention to take industrial action; action surely contemplated to bring the Commission's recommendation into disrepute and to sabotage any prospects that you have of achieving a result in the conciliation. The material cries out that this is a case in which there are not genuine attempts to reach an agreement. There is a cynical attempt to cloak a corporate campaign against my client with the protection that the Act provides for genuine bargaining processes and action taken arising out of those.

PN52

So, Commissioner, if that doesn't tell my learned friend the basis of our case - well, I'm sorry. But I request that I be able to call Mr Gerard and proceed with my case.

PN53

MR CRAWSHAW: Well, we've had an opening. I'll deal with the question of the interim ..... submissions perhaps, and once we hear from my friend whether there's any difference between them - and it's true that the material that is relied on does come from Mr Gerard's affidavit. I just thought - we thought there might have been something more because there is plenty of grounds on which one could argue genuineness that were out there, but obviously aren't ..... so none of that takes us by particular surprise.

PN54

THE COMMISSIONER: Very well, thank you. Mr Murdoch.

PN55

MR MURDOCH: I call Mr Gerard.

<GREGORY WILLIAM GERARD, SWORN [10.06am]

<EXAMINATION-IN-CHIEF BY MR MURDOCH

PN56

MR MURDOCH: Mr Gerard, do you have a copy of your affidavit, sworn and filed in this matter?---Yes, I do, Mr Murdoch.

PN57

Are the contents of it true and correct to the best of your knowledge and belief?---They are.

PN58

Do you need to number that, Commissioner?

PN59

THE COMMISSIONER: Yes, I do. It will be exhibit BHP3.

EXHIBIT #BHP3 AFFIDAVIT OF GREGORY WILLIAM GERARD

PN60

MR CRAWSHAW: I have some objections to that.

PN61

THE COMMISSIONER: Do you want to deal with those now, Mr Crawshaw?

PN62

MR CRAWSHAW: If I can take you to paragraph 40.

PN63

THE COMMISSIONER: Before you go to that, Mr Crawshaw, do you want to do that with or without the witness present?

PN64

MR CRAWSHAW: I've got no problem with the witness. The second sentence we object to. It's the witness giving evidence about his opinion as to the notices. We would have thought the proper thing to do, rather than have this witness give his opinion as to the notices, or the notices to be tendered, and my friend can make submissions about it; we can make submissions about it. It's not for this witness to seek to characterise the notices in a certain way without them being tendered.

PN65

THE COMMISSIONER: So do I take it you want - having heard you so far - if you go to the third line in paragraph 40 and the word "detail" - fourth word in - to delete the words "conduct by the unions in organising, encouraging and citing" deleted, so it would read "same form and detail their members" - sorry - "and detail".

PN66

MR CRAWSHAW: Well, what we're really saying is the whole sentence should go out.

PN67

THE COMMISSIONER: Yes. Very well.

PN68

MR CRAWSHAW: The notices should be evidence - they were put in evidence two days ago. Remember, they were the notices that weren't attached to Mr Gerard's affidavit, and Mr Herbert tendered them after lunch; they can be put in. And really it's not for this witness to seek to characterise those notices in a certain way, but he may be correct or he may not be. But, I mean, what's particularly objectionable to us is the path that you highlighted, Mr Commissioner, may be that if you look at the notices they are substantially in the same form, but still not for this witness to characterise.

PN69

THE COMMISSIONER: Mr Murdoch, do you have any view on that?

PN70

MR MURDOCH: Commissioner, the material is, in my submission, admissible. It's a matter for later submissions, if my learned friend wants to say that it's only the witness's opinion. It's more than opinion in the sense that any sensible person can observe two documents and say if one is substantially the same as the other. But, look, if my learned friend wants them tendered, we're happy to do so, and we'll endeavour to arrange that. There's no particular issue about one or two - - -

PN71

THE COMMISSIONER: I think he wants the sentenced deleted as well, Mr Murdoch.

PN72

MR MURDOCH: Well, there's no basis for deleting the sentence, Commissioner. If he wants to make a later submission - that it's a matter of weight - that it's Mr Gerard's opinion versus someone else's opinion, that's fine and you can rule on it, but I suggest that at the end of the day it's unlikely to be an issue of great import.

PN73

THE COMMISSIONER: Well, certainly, I'd agree with that. I mean, I have seen this notices before. It seems to me they do little more than what is required of the union pursuant to the Act, and I doubt the legislature, when they required such notices to be given, would have thought that they might be viewed in the same light as viewed by the witness - they're just complying with the legislation. Look, I'm not saying the detail - the intent - I know there's a debate about whether they do or not comply in detail with the legislation, but it seems to me that the intent is you've got to give them three days notice in writing, and the union did that.

PN74

MR MURDOCH: We'll put them in.

PN75

THE COMMISSIONER: Very well. I am - with the comments I've already made, Mr Crawshaw - prepared to leave the words in, but I think it's safe that the union could be sure

PN76

MR CRAWSHAW: Well, my concern - - -

PN77

THE COMMISSIONER: - - - that I don't intend to attach much weight to the opinion.

PN78

MR CRAWSHAW: I thought my friend would have been concerned about leaving them in, because if anything was going to depend on Mr Gerard's opinion of the notices, I'd have to cross-examine on it, and that would only soak up the precious time that he seems to worried about.

PN79

THE COMMISSIONER: Well, they can stay in - and I've already given my view about the opinion.

PN80

MR CRAWSHAW: I take it, from your view, Mr Commissioner, that I don't need to cross-examine.

PN81

THE COMMISSIONER: I wouldn't waste any time on it.

PN82

MR CRAWSHAW: Paragraph 41 - we object to the whole sentence on the basis of hearsay. Now, it's true that hearsay can be allowed in this Commission, on occasion, and it's true in interlocutory applications in a normal court - if that be what this is - it's still not clear to us that if that be what it is, that hearsay is allowed. But in order for the respondent, as it were, to that hearsay to deal with it, the hearsay, in an interlocutory application, is in accord, has to identify the source of the hearsay.

PN83

So that at least one - it's always difficult to cross-examine on hearsay, because the witness hasn't got any personal knowledge - but at least one can get instructions on the matter from the relevant people. Here we have a sentence that doesn't identify one human resource manager; doesn't identify one delegate from the union, or it doesn't even identify the unions for that matter, and doesn't identify the contractors. It's impossible for us to deal with that by way of getting instructions, or by way of contrary evidence.

PN84

THE COMMISSIONER: Well, it may be that, Mr Murdoch, you might be prepared to get some specifics in examination-in-chief of the witness, and then you can, before cross-examination, get some instruction, Mr Crawshaw.

PN85

MR CRAWSHAW: If we had the specifics, that might be possible.

PN86

THE COMMISSIONER: Unless you can contest that I - - -

PN87

MR MURDOCH: I announced earlier that I'm going to examine the witness in relation to the matter of contractors, employees, but - - -

PN88

THE COMMISSIONER: Thank you.

PN89

MR MURDOCH: And will do that when the time comes.

PN90

MR CRAWSHAW: We say that we make the same objection in relation to paragraph 42. It's the same point. Paragraph 46, the second sentence, the witness opines as to damage to not only BHP, but also Australia's international reputation as a reliable supplier of coal. Presumably, that's an opinion that depends on what is said in the first sentence. I'm not objecting to the first sentence, that can be tested, but the opinion is one given by a witness with apparent, or some apparent, expertise in industrial relations.

PN91

He's certainly not a witness who, on the face of it, has any expertise in relation to economics, trade, or anything of that nature. And he certainly, in our submission, not only can't give evidence about damage to BHPs reputation but also Australia's international reputation by way of opinion.

PN92

THE COMMISSIONER: I think it's a matter, Mr Crawshaw, that you can test the witness on the point in cross-examination.

PN93

MR CRAWSHAW: I can certainly test him on the first sentence - - -

PN94

THE COMMISSIONER: Well, how he comes to the conclusion in the second sentence is a matter for cross-examination and then weight.

PN95

MR CRAWSHAW: If the Commission pleases. Well, my next objection is probably of a similar kind. We object to that part of paragraph 48 which says that the Central Queensland economy will be adversely affected. This witness has no expertise in matters economic as far as we can see. In those circumstances he shouldn't be entitled to give an opinion before this Court if it is nothing more than an opinion. And I put in the same category the second sentence on paragraph 49, and paragraph 50. Those matters have nothing to do with BHP, never mind having - they certainly have nothing to do - - -

PN96

THE COMMISSIONER: I'm sorry. I apologise to interrupt you. Did you say the second sentence in paragraph 49?

PN97

MR CRAWSHAW: Yes - I'm sorry, the last sentence in paragraph 49.

PN98

THE COMMISSIONER: The last sentence, yes.

PN99

MR CRAWSHAW: And the whole of paragraph 50. They are matters extraneous to BHP and they are certainly matters extraneous to this witness' expertise.

PN100

THE COMMISSIONER: Very well, thank you.

PN101

MR CRAWSHAW: One could get any number of people off the street to give opinions such as that and they wouldn't matter a jot. And this witness can't put it any higher than any one else in the absence of any expertise.

PN102

THE COMMISSIONER: Mr Murdoch?

PN103

MR MURDOCH: Commissioner, the objection is without foundation because Mr Gerard has long experience in industrial relations. He has long experience in dealing with strikes by my learned friend's client in the Central Queensland coal fields. He is better placed, in my submission, than most to have studied those strikes and their effects. An industrial relations practitioner, in my submission, is far better positioned than the so-called person in the street.

PN104

If my learned friend wants to challenge and test that he can do so, and in my submission, it is self evident that an industrial relations practitioner would know plenty about the impact of strikes on the company and on the immediate community and on the company's reputation in the international coal market. If he didn't he shouldn't be in the job.

PN105

THE COMMISSIONER: Again, Mr Crawshaw, I'm prepared to allow it and it's a matter of weight. I mean, the second sentence of - sorry, the last sentence of paragraph 49, for instance, would hardly be a sentence of precision on which you could base much, but I'm happy for it to stay, for you to test it, and then to address me on what weight I should attach to it.

PN106

MR CRAWSHAW: If the Commission pleases.

PN107

THE COMMISSIONER: Are they all the objections?

PN108

MR CRAWSHAW: Yes, Commissioner.

PN109

THE COMMISSIONER: No others? Perhaps, Mr Murdoch, what we might do is take a brief adjournment before you commence and we might try and organise to get the people standing some seats rather than have everyone stand up all day. So we'll adjourn for ten minutes to allow that to happen.

SHORT ADJOURNMENT [10.22am]

RESUMED [10.34am]

PN110

THE COMMISSIONER: Mr Murdoch.

PN111

MR MURDOCH: Mr Gerard, would you be good enough to go to paragraph 41 of your affidavit, please.

PN112

MR CRAWSHAW: The thought occurred that in all likelihood we will be calling Mr Vickers to give evidence. I wonder in those circumstances whether it's suggested that he should leave the room. He is instructing me in this matter, he being the official with the carriage of the industrial action that is the subject of these proceedings. So in those circumstances I would be resisting the proposition that he leave the room, but I thought I should bring it to the Commission's attention.

PN113

THE COMMISSIONER: Do you object to that course, Mr Murdoch?

PN114

MR MURDOCH: I don't object to the course, but, really, if there's a risk being run, my learned friend runs it in that if there's any suggestion later that Mr Vickers was advantaged through being here, that's a risk that is on my learned friend's head, not mine. He is entitled to have the human face of the union here to instruct him and that principle is well established.

PN115

THE COMMISSIONER: Are you prepared to run the risk, Mr Crawshaw?

PN116

MR CRAWSHAW: I don't know what risk I'm running, but - - -

PN117

MR MURDOCH: Well, you don't have to worry, then, do you?

PN118

THE COMMISSIONER: Yes, that's right.

PN119

MR MURDOCH: Ignorance is bliss.

PN120

THE COMMISSIONER: Just keep running till someone tackles you.

PN121

MR MURDOCH: Commissioner, I might say that now that everyone has got a seat, it was okay when some of our friends were down the back in the crowd, but I don't like having to present a case with a sign in the corner attacking a member of the Commission by name, and if the gentleman wants to cover it up with something else, that's fine, but the Commission shouldn't be intimidated, or shouldn't even be subject to attempts to intimidate it by signs or placards, whether they're tattooed on someone's forehead or emblazoned on their T-shirt, so it's a matter for the gentleman, but I'd suggest that the proper course is that he covers up his sign that names a member of the Commission and makes a certain statement about the Commission's alleged lack of capacity.

PN122

THE COMMISSIONER: Does anyone have anything - are you in a position to put something over - - -

PN123

MR..........: If you'd like me to, I'll turn it inside out.

PN124

THE COMMISSIONER: Perhaps that's an idea. You might adjourn to the gentlemen's room to do that. Mr Murdoch.

PN125

MR MURDOCH: Mr Gerard, paragraph 41. The human resource managers at the mines, are they people that you know and know well?---Yes, I know them well, Mr Murdoch.

PN126

And can you tell the Commission which of them have been the source of information that's enabled you to make the statement that you do in paragraph 41?---I know that Mr McMahon, the HR manager for Peak Downs, advised me that delegates had contacted the contractors and also contacted the contractors' employees suggesting that they respect the picket line and not go through the picket line. I also recall a discussion with Ms Cheyne, the HR manager at Norwich Park, who said that in discussions they had with contractors, the contractors advised them that they had received phone calls from various delegates and also that their employees had been approached by delegates not to cross the picket line.

PN127

So far as Peak Downs is concerned, what has occurred since the strike commenced on Wednesday in relation to the contractors and employees?---On the first day of the strike - we have a shut down at Peak Downs of the wash plant which is due to conclude on Sunday and we have REB Engineering there to conduct the work, amongst other people. I understand REB Engineering have a total work force of about 100 people and only one of their employees actually got onto the mine site. I am aware that there were four other contractors' employees who also went on with the job but I don't know which company they were working for. That was on the 28th. Yesterday 12 REB employees went through the picket line out of the 100. There's another contractor on site called Callenders. I understand that they've just withdrawn from the operation altogether. We had an incident at the picket line where a car carrying some contract cleaners was stopped at the picket line and the firm had abuse hurled at them, and two of the five female cleaners got out of the car at the picket line and refused to go into the mine. Today I'm informed that the manager of REB Engineering, and I can't recall his name because I didn't write anything down, rang Mr Pearce, who's the district vice president of the CFMEU, and talked to Steve about getting through the picket line. I understand the Steve said that REB employees could go through the picket line. Subsequent to that, this person, the manager of REB, was phoned by Mr Marty Crane, the lodge president at Peak Downs, and the words used were to the effect, "No fucking way are you going to get through the picket." The manager then rang Mr Pearce back again and Mr Pearce said, "Look, you can go through the picket." So when the bus turned up this morning, the picket line came across the road and surrounded the bus. Mr Crane got on the bus and they asked the bus to move right up to the front of the picket line. I understand then six of the picketers got on the bus. There was a lot of abuse shouted at the REB employees. They finished up driving through the picket line and our staff have spoken to them and a couple of fairly large and brave fitters were almost in tears with the amount of abuse hurled at them today on the picket line.

PN128

MR CRAWSHAW: When this evidence is being given, can we have the source of it? It's really quite objectionable for this witness to be giving evidence in the form he is as though he was there, watching the tears. He's presumably been told my someone.

PN129

THE COMMISSIONER: I think that's right.

PN130

I mean, you need to tell us, Mr Gerard, how you know these things?---I was told by Mr Anthony Longland, who is a solicitor with Freehills, who was at the picket line today and overheard all the conversations.

PN131

MR MURDOCH: Now, you've mentioned the situation regarding REB Engineering?---Yes.

PN132

Have other contractors and employees been absent since the strike commenced on Wednesday?---Particularly talking about Peak Downs or other mines?

PN133

Well, specifically Peak Downs?---No, our understanding, Mr Murdoch, is that no other contractors have been on site.

PN134

And were there contractors and employees there on Tuesday before the strike started?---Yes. I believe a number were there. 100 or more.

PN135

Are you able to say whether the scheduled Peak Downs shut down will be delayed by what has occurred?---Yes, and it relates to another part of the affidavit that Mr Crawshaw has objected to. I am aware that the shut down is due to conclude on Sunday. It made - in fact, it will extend for over a week before we can get any coal out of the Peak Downs Mine, so it's double the effect of the strike, so instead of having a week strike, this will now mean 2 weeks without coal at Peak Downs, and Peak Downs currently has no clean coal on the stockpile.

PN136

And is the Peak Downs coal coal that goes to the export market or the domestic market?---It's exported through Hay Point.

PN137

Now, are these effects on contractors isolated to Peak Downs, or do you have information that other mines are affected?---Yes, Saraji Mine, I'm aware that a number of contractors couldn't get through. REB Engineering, Coal Fields, Transcote, Hastings Deering, LEGRA NMC, G and S Contractors weren't able to get through on Tuesday - yesterday - Wednesday, I should say. Yesterday three Hastings Deering employees were turned away from the picket line.

PN138

MR CRAWSHAW: I object once again. There's no source for any of this being - - -

PN139

THE WITNESS: I was advised by Mr Russell Harris, the human resources manager at Saraji Mine on both days.

PN140

THE COMMISSIONER: But did Mr Harris see this or did someone tell Mr Harris, who then told you?---I believe that he saw the Hastings Deering picket line turn around. He was then advised simply that these contractors weren't on site, that they didn't go through the picket line. Yesterday, as I mentioned, Hastings Deering and also advised that REB Coalfields, Transcote, Hastings Deering, LEGRA NMC and G and S Contractors, again, didn't work at the mine.

PN141

MR MURDOCH: What's the position, then, at other mines?---Gregory Mine, I understand - well, I've been advised by the mine manager and also the HR - mine manager, Mr Hanson, the human resources manager, Mr Ritchie, that all contractors in Gregory Mine attended work on both days. At Crinum Mine the management is the same. Mr Hanson and Mr Ritchie advised me that contractors reported for work on both days. At our Norwich Park Mine on a telephone hook-up I had with the mine manager, Mr Halliday, and the HR manager, Ms Cheyne, they advised me that on Wednesday Hastings Deering, Eagle Engineering, Goninans, Cooee Electrical didn't cross the picket line. Yesterday, Ms Cheyne advised me that she'd been advised by Goldings that two of their employees had resigned because they didn't want to cross the picket line, and she also told me that the Eagle Engineering people have packed up and left site, and that was re-enforced by Mr Halliday who told me that there is a contractors' accommodation centre in Dysart which provides a sort of - provides dongas and a messing facility for contractors for Saraji and Norwich Park and there may be some fill over for Peak Downs depending on the availability of accommodation in Moranbah, and on Wednesday there were 130 people in that camp and yesterday there were 10 to 20. Everybody else has left town.

PN142

Are they all contractors' employees?---To the best of my knowledge.

PN143

Mr Gerard, can I take you to paragraph 46 of your affidavit?---Yes, Mr Murdoch.

PN144

And specifically to the second sentence which deals with severe damage to BHP Coal and Australia's international reputation as a reliable supplier of coal, what basis do you have for the statements that you make?---I've spoken with Mr Andrew Offen who is our General Manager, Marketing, for BHP Coal in Queensland and New South Wales together with the Shipping Manager, Mr Shawn Quilty, who advised me that they were receiving numerous approaches from customers expressing their absolute concern at the amount of coal that they weren't going to get and that there was potential that they would run out of coking coal and also the potential of having to shut down blast furnaces which is a major exercise. As of yesterday I spoke with Mr Offen. He'd been contacted by our Seoul Office, and one of our largest customers, Pohang Iron and Steel, commonly called, POSCO, now appears that if the strike runs its full length that they will run out of coal for the largest steel works in the world in Korea.

PN145

Does that steel works carry stockpiles or what is the situation?---They had stockpiles there, but I understand that they will use up the stockpiles and given that there's a general shortage of coking coal around the world at the moment, which is a bit different they way it's been, they will not be able to pick up additional coal from other suppliers in Queensland and given the coking coal mines in Canada have shut down, they will not be able to source alternate coal, as I understand it, unless a miracle happens.

PN146

Now, you've also, in your affidavit, referred to the loss to the Central Queensland economy?---Yes.

PN147

Which you've said is already in a depressed state, do you have a basis for that view?---We've seen mine closures because of the downturn in the industry. We've also had some major industrial disputes and I've seen, over the years, I've been in the industry since 1971, I've been through the tax strike, I've been through the apprentices' dispute, I've been through the Curran dispute, I've been through the Gordon dispute, Gordonston dispute I should say, and I've seen what's happened to the economy in the towns that are affected by these major disputes and just how long it takes those economies to bounce back, and what we tried to do in the affidavit was to give a simple example for Norwich Park, for example, where, to the town of Dysart, there's $288,000 which will be lost in wages which could invariably be spent, part of it could be spent in the town of Dysart. Dysart's economy is poor given that we've lost market-share at Saraji and Norwich Park and have had to reduce numbers, so we try to give that simple example of 288,000 for Norwich. Now, Saraji Mine, which is a larger mine, the wages would be in excess of 300,000, so you can see over $½ million in wages in one week not being paid to employees who live in the town of Dysart. Now, obviously, for Peak Downs being an either larger mine, there would be similar, fairly major figures of wages not being available to be spent in the towns.

PN148

Could I take you then to the matter of the Hay Point coal handling and loading firm. Is it the case that there's currently no strike at that terminal?---That's correct.

PN149

Has there been any effect on the operation of the terminal arising out of the 7 day strike that's commenced the coal mines?---As an advice this morning there will be no suitable coal left to load by 7.30 am on Tuesday, so the stock - the coal that we had there that we've got contracted, there may be some coal there that we don't have ships coming through but we won't be able to load ships and we're going to occur a fair amount of demurrage. I think I said in my affidavit 6-10 million. I asked marketing why can't you give me more precise figures and they said, "Look, it's a daily removable feast because what we try and do is mitigate the impact on customers by rescheduling ships, by having ships delayed, but we can't be more precise." The latest information we've got, based on what we know up until Tuesday, that the demurrage will be about 4.3 million. Now, if we get another, say, fortnight strike or Hay Point goes out then demurrage could rise to a figure of around about $22 million on top of what we estimate we've lost over the revenue for the strike which is $36 million is revenue.

PN150

This is the strike that's currently on?---Yes. $36 million in revenue we will have lost by Tuesday afternoon next week.

PN151

Will the demurrage only be lost when coal runs out next Tuesday morning or is demurrage being lost now?---I don't know, Mr Murdoch.

PN152

Do you know where demurrage goes? Does it go to Australian sources or does it go off-shore?---No, it goes to the customer and the shipper.

PN153

Nothing further, Commissioner.

PN154

THE COMMISSIONER: Thank you, Mr Murdoch. Mr Crawshaw.

PN155

MR CRAWSHAW: I think I'll need a bit of time to get some instructions on those matters, Commissioner. Can I suggest 11.15.

PN156

THE COMMISSIONER: This is specifically on the matters of expansion of what was - - -

PN157

MR CRAWSHAW: Yes.

PN158

THE COMMISSIONER: Any objection, Mr Murdoch?

PN159

MR MURDOCH: No, Commissioner.

PN160

MR O'SULLIVAN: Mr Commissioner, I also need to seek some advice. I may need to call witnesses particularly in regards to the contractors. I'll endeavour to be able to report back to you by 11.15 as well on that.

PN161

THE COMMISSIONER: Very well. We'll adjourn until 11.15.

SHORT ADJOURNMENT [10.55am]

RESUMED [11.15am]

PN162

THE COMMISSIONER: Mr Crawshaw?

PN163

MR CRAWSHAW: Thank you for that time, Mr Commissioner.

PN164

Mr Gerard, when did BHP decide to make this application?---After the conciliation failed, when was it Monday night.

PN165

I see. And I take it BHP wouldn't be making this application but for the fact that industrial action has taken place, is that right?---For the suspension and termination of the bargaining period.

PN166

Yes, this application?---Yes.

PN167

It is because the industrial action is taking place?---Yes.

PN168

And are there any other applications that BHP seeks to make?

PN169

MR MURDOCH: I object, Commissioner, that is irrelevant to this.

PN170

MR CRAWSHAW: It is relevant to the exercise of your discretion. For example, if the circumstances were made out that two or three were satisfied, and this was just one of many applications that might be made, it is relevant to that exercise.

PN171

THE COMMISSIONER: I am not sure that I understand, Mr Crawshaw.

PN172

MR CRAWSHAW: Well, there may be an alternative remedy that achieves the same thing that the company seeks to achieve by this application, and that is relevant to the exercise of discretion.

PN173

THE COMMISSIONER: I'm happy for that question to be answered.

PN174

THE WITNESS: We have already filed applications to terminate the certified agreements at Peak Downs, Saraji, Norwich Park, Gregory. There is a decision pending on Crinum.

PN175

MR CRAWSHAW: Yes. Are there any other applications you intend to make in relation to this industrial action?---Not at this stage, no.

PN176

Have you had any meetings about any other applications that might be made?---No. We are gathering evidence at the moment as to, you know, what is happening on the picket lines, and they are not complete.

PN177

And what is the purpose of gathering that evidence?

PN178

MR MURDOCH: Commissioner, this is a blatant attempt to ferret around in relation to the communication between Mr Gerrard, other company officers and their legal advisers. It is a pathetic attempt to get some tactical advantage, using this as a trawling exercise.

PN179

THE COMMISSIONER: Well, I think it is drifting a bit far, Mr Crawshaw, from what be relevant about whether or not I should grant interim relief.

PN180

MR CRAWSHAW: If the Commission pleases.

PN181

All right. You mentioned a Mr Longland?---Yes.

PN182

How do you know he heard the conversations that you had spoken to him about?---He told me he did.

PN183

There is a solicitor collecting evidence on the picketing, is there?---Yes, he is.

PN184

Now you said in relation to the Peak Downs shut-down that the effect of the strike would be doubled?---Yes.

PN185

I am just trying to understand that. There was going to be a shut-down for this seven day period of the protected industrial action any way?---Well, the shut-down had been scheduled for some time.

PN186

Yes?---And unfortunately the initiation of the protected action coincided with the shut-down.

PN187

So?---So if the strike didn't go ahead the shut-down would have been completed this Sunday.

PN188

Yes?---With the strike now going ahead and the fact that five or six days out of - five days, I suppose, out of that shut-down, there are no contractors or employees to do that work.

PN189

Yes?---That work will have to be - and we assume the same sort of pressure is placed on contractors not to go on site until Tuesday, and we will have five days to catch up. And the washplant cannot be operated until that shut-down is complete.

PN190

So where does the double effect come in?---Well, instead of it being available to wash coal on Monday of next week, sorry, it may not be able to operate to produce coal until Monday the following week, because what we would have done this week, we have to do next week.

PN191

Well, on my understanding that means that there will a week's delay in resuming production?---A week's delay, yes.

PN192

So it will be the same effect on production?---No. If the strike hadn't of gone ahead we would be producing on Monday of next week.

PN193

Yes?---Because of the strike commencing we will not be able to produce until Monday the following week.

PN194

So you will lose a week's production?---We lose two week's production.

PN195

Yes, but because of the strike you lose a week's production?---Yes, because of the strike and the shut-down we in total lose two weeks.

PN196

Yes, but the shut-down was caused by the company?---Yes. But if the shut-down hadn't of gone ahead as planned, we would be producing on Monday, now we produce the following Monday.

PN197

I understand. And did you say that there was no stockpile at Peak Downs, did you?---No clean coal, no.

PN198

Well, what is there, what is there?---Oh I believe there is some raw coal in the stockpile, but it has got to be washed.

PN199

I see. And what about at Hay Point is there any Peak Downs coal there?---I don't know. I presume - I know they have been railing up until the strike, so I presume there may be some coal there, but I have no idea what the quantity is.

PN200

And what about coal from the other mines, is there any of that at Hay Point?---I don't know. We were railing up until the strike commenced, so one would presume that those trains have been unloaded, and there obviously would be coal, but the quantity I don't know. All I know is that we will run out by Tuesday.

PN201

Well, which coal will you run out of?---I don't know. It could be all of them. If we have got ships scheduled to take Peak Downs, Saraji and Norwich Park coal, and we have got sufficient coal to load a ship, that ship may deplete the stockpile completely of those mines.

PN202

Well, it could be all of them, you say?---It could be.

PN203

You don't know?---No.

PN204

It could be none of them?---No, that's not the case. I am advised that we have ships coming in which will deplete the entire stockpile.

PN205

The entire stockpile?---Yes, at Hay Point.

PN206

So you will run out of all of them?---Yes.

PN207

I thought you just said you didn't know?---I didn't know the quantities, but I know that we will run out of all of them.

PN208

You will run out of all of them by Tuesday?---It could be that - it could be that we don't have a ship scheduled for say Norwich Park, so there could be a stockpile of Norwich Park coal sitting there, but no ship to load it on. Now we can't send Norwich Park coal, for example, to a customer who traditionally takes Peak Downs coal, because it is different quality.

PN209

Yes. Look, I am not really asking about hypotheticals, I am asking about the hearsay evidence you have given as to what stockpiles are there and what will happen to them?---The best way to answer the question is that I understand that if ships come in on Wednesday to load certain coal, that we will have no coal to put in those ships.

PN210

But you don't know what coal that is?---No, no, I don't.

PN211

You don't know where it comes from?---No.

PN212

By the way, once the strike ceases on Wednesday, it will only be about five hours until coal starts reaching Hay Point from whichever mine the coal is needed from at Hay Point; isn't that right?---I don't know. It depends on the availability of trains, when Queensland Rail can deliver trains, then you've got to load them. It could be that coal may arrive at Hay Point eight hours after the strike concludes, but one train doesn't fill a ship. It only holds about 7000 tonnes.

PN213

But you can schedule trains to run as soon as the strike finishes can't you?---Yes, we can.

PN214

You mention the Curragh dispute?---Yes.

PN215

And you gave some evidence about the effect it had on the local town, that dispute went for months didn't it?---Yes.

PN216

And the industrial action went for months?---Yes.

PN217

And similarly with Gordonstone and that dispute went for months?---But a lot of people left town. They've reduced the work force - - -

PN218

Yes ?--- - - - and people left town and that affected the town.

PN219

Yes, I understand that, but it went for months; that dispute?---Yes, it did.

PN220

Well, it went for years?---Gordonstone went for years, yes.

PN221

Yes. And, indeed, the company closed the mine for many months?---Yes, they did.

PN222

Well, you're not seriously trying to compare that with a seven day strike are you?---Well, Curragh had a 13 week strike. We've got five mines that are on strike for a week so that's five weeks - five weeks out of their 13 so, you know, it doesn't take long for us to catch up.

PN223

I'm sorry?---The Curragh strike went for 13 weeks to the best of my knowledge.

PN224

Oh, I see, you might - yes?---So, you know, five mines by a week that's - we're half way through what Curragh experienced in one week.

PN225

I see. Well, I suggest to you it was 14 weeks but - - -?---You could be right, Mr Crawshaw.

PN226

THE COMMISSIONER: I actually thought it was 16.

PN227

MR CRAWSHAW: Well, the last - I think it's probably in your decision, Mr Commissioner, but - - -

PN228

THE COMMISSIONER: I don't think it matters.

PN229

MR CRAWSHAW: In any event, it's more than five. I'll just ask you this: The Hay Point loading facility, it's not dedicated to BHP Coal, is it?---Yes, it is.

PN230

It is?---Yes.

PN231

So it only takes BHP coal?---Yes. We ship some of our Riverside coal and South Walker Creek coal which we don't operate; that's operated by Thiess Brothers or Thiess Contractors - I'm showing my age - through the Dalrymple Bay coal terminal.

PN232

I see?---But only a small amount.

PN233

Now, I just want to take you to paragraphs 25 and 26 of your statement?---Yes.

PN234

And you say:

PN235

At the conclusion of the meeting on 31 January, Mr Vickers said words to the effect of "I will recommend the document even though there are parts I can't agree with.

PN236

?---Yes.

PN237

And you don't remember the exact words?---I certainly recommend - "I will recommend the document even though" - and I'm a bit vague of what he might have said then.

PN238

All right. So do you say you remember the exact words, "I will recommend the document even though"?---Yes.

PN239

But you don't remember what - - -?---I can't. He said, "There are parts that I" - I can't remember whether he said, "I can't - parts that I can't agree with" or "Parts that I can't - that I have great difficulty with." I just can't remember the exact words, but its words to that effect.

PN240

So didn't he say words like this:

PN241

There are elements of the proposal with which I have a fundamental problem particularly the hours of work or arrangements for contractors.

PN242

?---As not in that statement that I recall. I think it was during the meeting, yes.

PN243

No. I'm suggesting he made it in this statement at the end when he was talking about recommending the document?---No, I don't recall him going to more specific - any specifics rather than just a fairly short one sentence of that nature.

PN244

Well, what about the part that I suggested to you where he said there are - where I suggest he said, "There are elements of the proposal with which I have a fundamental problem"?---He could have said that, yes.

PN245

And did he also say in that conversation:

PN246

However, I understand that the proposal is the best that can be achieved by these negotiations with BHP and that advice will be given to a lodge officers' meeting.

PN247

?---I can recall him saying that - words to that effect, but I can't recall when he actually said it.

PN248

So it was those - it was from those words that you got your evidence that he said words to the effect that he would recommend the document? Isn't that the case?---Yes, and he's told me since he did recommend the document.

PN249

No, but it's from the words where he said, "I understand the proposal is the best that can be achieved by these negotiations with BHP"?---Yes, he certainly said that. He told me that in Emerald.

PN250

I'm sorry?---He repeated that in Emerald.

PN251

And that's where you got in summary that he would recommend the proposal?---Oh, he clearly said on 31 January, "That I will recommend the documents."

PN252

No. Well, I'm suggesting he didn't use those words, but used the words that I've suggested?---Well, that's to the best of my recollection, Mr Crawshaw.

PN253

Now, you gave some evidence this morning about the details of paragraph 41?---Yes.

PN254

Now, firstly, can I ask you this: which Human Resource Managers told you that delegates of unions have approached or otherwise made contact with various contractors?---Mr McMahon and Ms Cheyne, C-h-e-y-n-e.

PN255

Yes. All right. And which delegates have approached - well, were you been told by McMahon or Cheyne have approached or otherwise made contact with contractors?---They didn't tell me their names.

PN256

I see. And which contractors did they tell you the delegates had approached or made contact with?---REB Engineering.

PN257

When was that?---Sorry.

PN258

When was that?---REB Engineering?

PN259

Yes?---I don't - I don't know when it was.

PN260

So - - -?---It was earlier. Late last week or early this - no, it must have been early this week before the strike.

PN261

But you don't know any more details other than - who told you that?---Mr McMahon told me that REB had told them that delegates had phoned them. They wouldn't name the delegates. REB also told Mr McMahon and he had it confirmed from staff that work in our wash plant that members of our work force had been approaching REB employees who were on site working with them that next week we expect you not to go through the picket line.

PN262

And so you're not talking about delegates here now?---No, I - as I said there were delegates, but the contractor wouldn't name the delegates, but they're also individual employees.

PN263

Well, so you can't name any employee or delegate involved in this activity?---No, I wish I could.

PN264

Why do you wish that?---I think it supports our case.

PN265

And, in paragraph 42, you say that in various conversations with mine managers that the unions or some of them have endorsed or otherwise sanctioned the establishment of pickets?---Yes.

PN266

Which mine managers or human resource managers are you talking about there?---Mr McMahon, Mr Harris, and Ms Cheyne.

PN267

And did they tell you who was involved in this activity?---I certainly recall Mr Halliday telling me that he - Mr Frank Johnson, who is the lodge secretary at Norwich Park approached him to say that there would be a picket at Norwich Park and he was trying to work out the best place to put the picket.

PN268

I see. Anyone else?---No, I can't recall any other delegates being named.

PN269

All right. Well, let's move on to paragraph 43?---Yes.

PN270

You say that the seven day strike will mean that BHP is unable to produce coal at each of the sites?---We're not producing coal.

PN271

No, but there are stock piles of coal that, apart from Peak Downs, which I think you said didn't have any clean coal?---Yes.

PN272

There are stock piles at the other mines, are there?---Yes, but I don't know the quantity.

PN273

And have you tried to ship that coal at all?---Tried to rail it?

PN274

Rail it, sorry?---No, we can't load the trains.

PN275

Have you tried to send a train in?---No.

PN276

Not at all?---Not that I'm aware.

PN277

Do you have any proposal to send a train in?---I'm not aware of it.

PN278

But you then go on to talk about - because BHP supply contracts for specific coal types this limits BHPs capacity to substitute during periods of strikes?---Yes.

PN279

I take it from the words you use that there is some capacity to substitute during the strikes?---I don't know, Mr Crawshaw. We have two mines currently producing; that's Goonyella Riverside and Blackwater. Blackwater coal is not compatible with any of those coals so you couldn't substitute there. There may be a possibility, and I put it at no higher than that, that we could possibly substitute some Goonyella Riverside coal for Peak Downs only, but then again, I'm not sure, because each of our mines has a particular specification and if the customer requires that specification you - for example, you can't put Norwich Park coal into Goonyella Riverside and vice versa. They are completely different types of coal.

PN280

Yes. Placed in relation to one mine you may be able to substitute coal?---I don't really know the answer to that.

PN281

You don't know either one?---Not in relation to Goonyella or Peak Downs.

PN282

You can't say that you can't substitute - that's a bit of a double negative there?---Yes, it is.

PN283

So, I'll withdraw it?---I would probably have to say that I don't know the answer to that.

PN284

What about - you could substitute coal from other companies, couldn't you?---I know we have bought coal from time to time but, again, because I'm not completely au fait with the specification I - for example, I know that we can substitute Gregory coal with Kestrel coal, but I have no idea what Kestrel's coal stock piles are like and whether they are prepared to sell us any coal.

PN285

Do you know whether it is happening and there is substitution going on at all?---At the moment, no, there is no substitution going on.

PN286

How do you know that?---Because marketing tell me that all the other coal mining companies in the State are flat out producing as much as they can to satisfy their own customers.

PN287

So you've actually investigated the question as to whether any substitution is going on?---I didn't investigate. I was simply told by one of the marketing people. He said, "There is no coal around that we can substitute."

PN288

And so the marketing people have told you that they've investigated other companies as well as BHP?---That goes on all the time.

PN289

No, but have they told you that that has happened?---No, they didn't tell me that.

PN290

And I think what you're saying is that each type of coking coal has specific qualities, is that what you're saying?---Yes.

PN291

But that can be achieved through the blending of various coal types, can't it?---Yes, it can.

PN292

Has that been investigated?---I don't know.

PN293

Do you know whether it's occurring?---I don't know. I leave that to the experts in that area.

PN294

You see, most steel mills blend their coal anyway, don't they, when they get it?---Some do. Some rely purely on some of our products.

PN295

Okay, well, let's go to paragraph 44. You say BHP will lose about 36 million in lost revenue?---Yes.

PN296

I presume you got that figure from some one?---I got it from the vice-president, commercial, for Queensland Coal.

PN297

Who was that?---Paul Johnson.

PN298

And did he tell you how much the costs of BHP will go down as a result of the strike?---No, he didn't.

PN299

Did you ask him?---No, I didn't.

PN300

But there will be a considerable diminution in costs, won't there?---We would save wages, yes.

PN301

Not only wages, but on your evidence, the paying of contractors?---Yes, but we're not getting that work done, that's the problem. We want it done.

PN302

All I'm asking is whether you are going to save costs in relation to contractors?---No, because that work still has to be done so whilst we might save it this week eventually it will have to be done and we will expend that amount of money that we have allocated to the contractors.

PN303

And what about in relation to employees, do you make the same point?---We're saving money on wages at the moment, yes.

PN304

But you might have to pay extra wages later to catch up?---I don't know. We may have to put plans in, once this issue is completely resolved, to boost production to catch up but I don't know. It's too early. We're too busy trying to have this issue resolved, Mr Crawshaw.

PN305

But the possibility is there that you can catch up on a week's lost production, isn't there?---I don't know. I would have to look at the pit inventories. I know the pit inventories at Norwich Park are very low at the moment so it may not be possible to catch up, no.

PN306

But in the past that has happened, hasn't it, after strikes?---It's so long ago that we've had a strike of this magnitude, I can't recall.

PN307

You had a fair bit of strike activity in 1994, didn't you?---I wasn't employed by the company then.

PN308

You were in the industry?---Yes. I have no knowledge of what happened within the BHP Group in 1994, Mr Crawshaw.

PN309

No, but you were in the industry?---Yes.

PN310

You had been in the coal industry for a long time?---Yes.

PN311

You know there was not only at BHP but throughout the industry considerable lost time in 1994 over the issue of coal prices?---Yes.

PN312

And you know that that occurred at BHP as well?---Yes.

PN313

So where were you in 1994?---Queensland Mining Council.

PN314

Well, you know from your experience at the Queensland Mining Council that after strikes take place there's the potential for companies to increase production subsequent to the strike to catch up on the lost production that occurred during the strike?---I don't know whether we can do that with our existing workforce.

PN315

Can you answer my question, please. I'm asking about your general experience?---Some may be able to catch up if they have large pit inventories and crank the mine up to seven day roster if it's already on five day roster so there are potentials to do it.

PN316

Well, it's happened in the past. That's all I'm asking you. It's happened in the past in the coal industry in Queensland?---Yes.

PN317

You don't know whether it will happen or not?---No.

PN318

Subsequent to this seven day strike?---No, I don't.

PN319

It may happen?---It - it may and it may not. We might - we might lose some contracts.

PN320

It may - sorry?---We might lose some contracts.

PN321

Did I ask you about that?---No.

PN322

So it may happen, is that right?---No one has said to me that we're going to try and crank up production after the strike.

PN323

But it may happen?---It could happen, yes.

PN324

If that happened presumably you would have to boost the wages of the employees past what they would normally earn if the production hadn't been boosted?---How do you mean by that? I'm sorry, I don't understand.

PN325

Won't you have to pay them extra in some way?---What, for overtime?

PN326

Yes. Or for extra time worked?---Yes, we could - that might happen. That's if we had - the important thing in all this, Mr Crawshaw, is whether we've got ships to put it in.

PN327

Yes?---Now, if people say, "We don't want your coal and we've got it from elsewhere," we may not have to catch up and we've just lost that money.

PN328

But has anyone said, "We don't want your coal"?---Not at this stage, no.

PN329

Do you have any idea of the overall profit figures for BHP in recent times?---I think the half year profit for BHP world-wide was about 1.4 billion.

PN330

And what about for Queensland coal?---No, I don't know what the profit figure is.

PN331

But it's been going up in recent times, hasn't it?---It has improved, yes primarily because of the exchange rate.

PN332

You say in paragraph 46 "the strike will immediately result in BHPC being unable to satisfy customers requirements"?---Yes.

PN333

Which customers are you talking about there?---There are a number. The only ones I could name that I can recall people telling me were POSCO, Nippon Steel, CORVUS which is a consortium of British Steel and Hergamens. There's also a Swedish steel mill which only has about seven days of coal left in its stockpile and we have to send that around the Cape. It takes a long time to get there.

PN334

But were they all going to get coal from this ship that was - well, I withdraw that. You told us earlier that you would be able to load the ships at Hay Point until Tuesday, was it or Wednesday?---Tuesday.

PN335

Tuesday?---Yes.

PN336

So presumably until you can't load the ships any more there will be no interruption to any customers, is that right?---Well, we'll finish up with an armada of ships off Hay Point.

PN337

Well, how many ships are due to come in?---I don't know.

PN338

Well, do you know - is there one in there at the moment, is it?---I don't know.

PN339

You don't even know whether there's one loading at the moment?---No. No, I don't. I don't regularly check to see what our shipping schedule is.

PN340

So as far as you know there might not be any ships loaded for the next week?---Oh, there are ships - I know there are ships scheduled. I just haven't gone into the specifics.

PN341

So you don't know which ships are scheduled?---No.

PN342

And you don't know which customers those ships are supplying?---No.

PN343

So how can you say any customers are being immediately affected?---The ships come in - you know it could be, for example, that this Swedish ship that I'm talking about may come in in three weeks time and there may be no coal to put in it.

PN344

Why is that?---Because it's going to take us a long time to catch up with the loss of production for a week.

PN345

But you don't know that you won't be able to satisfy that ship in three weeks time, do you?---Well, I know that POSCO, for example - if we can't get coal to them within seven days they will run out of coal.

PN346

But are you getting - by what means are you getting them the coal in seven days?---Well, we would have to ship it to them but we would have to have the coal there to ship it to them.

PN347

Well, I'm trying to find out a connection between this strike and them running out in seven days. Do you understand?---If there is no coal or insufficient coal at the port when the POSCO ship arrives and because it's got to sail to Korea - if there's no coal or we've got to wait for coal to be railed that ship could take a week before it's loaded and then you've got sailing time to Seoul.

PN348

Yes, which is four or five days, isn't it?---Yes, something like that.

PN349

Well, you can't tell us whether there's any ship coming in for POSCO, was it?---No. And we ship 36 million tonnes out of there, Mr Crawshaw. I have no idea what - what ships come in. We've got a whole department that looks after that.

PN350

Yes, well, no one is being critical, Mr Gerard. Not of you anyway. In paragraph 47 you talk about losing substantial sums on carrier and Queensland Rail contract commitments?---Yes.

PN351

Can you just tell me what carrier commitments are as distinct from Queensland Rail commitments or are they one and the same thing?---They're one and the same thing, yes.

PN352

In paragraph 50 you're talking about the Central Queensland economy is already in different circumstances with other sectors of the economy such as sugar being in a depressed state?---Yes.

PN353

What's your source of information about the sugar economy?---What I read in the press.

PN354

I see. What about other sectors of the economy?---It was one that I just picked as an example.

PN355

Are there any other sectors of the economy that you rely on as being depressed?---The rural sector is very depressed.

PN356

What is your source of information for that?---The press.

PN357

Perhaps to cut it short, is there any information about the economy that you rely on that comes from any source other than the newspaper?---Not really, no.

PN358

Yes, thank you, Mr Commissioner.

PN359

THE COMMISSIONER: Mr O'Sullivan? Ms Nadj? Mr Murdoch?

<RE-EXAMINATION BY MR MURDOCH [11.58am]

PN360

MR MURDOCH: Mr Gerard, there was a suggestion that the strike could run for seven days and then there would be attempts to catch up lost production by altering the way in which work is done at the mine. Do you recall that?---Yes.

PN361

What is involved in changing the rosters of employees at the mines?---To give you an example, Mr Murdoch, currently at our Saraji mine we are way behind in pre-strip on our truck shovel operation and to do that we've put on 33 temporary employees to man up a fourth panel, so instead of having three panels we have four panels which then enables us to operate the pre-strip seven days a week rather than five days a week; so that's the additional wages of 33 people for six months I think we're scheduling it.

PN362

And is it something that one does simply by making a snap decision and then having it available immediately?---No, it's got to be planned. It's got to be planned.

PN363

And what is the lead up to such an alteration of work?---In some - I am aware in some cases where we've planned three, six months ahead to have a certain piece of work contracted out because of certain circumstances with the stripping schedules. On other occasions it could happen quicker if it was a major issue, like when drag line 11 fell in the pit at Saraji mine we had to mobilise contractors very quickly at great expense. I think it cost us a few million dollars to remove over burden to compensate for the fact that we had a drag line that was out of action for months.

PN364

Now you made mention of - you used the expression "armada of ships." My learned friend referred to the ship in the context of a ship taking coal for various customers. What is the arrangement re the number of ships?---Quite often when you fly over the port of Hay Point you could see eight to nine ships sitting at berth out in the ocean waiting to be loaded at either our terminal or Dalrymple Bay.

PN365

Nothing further, Commissioner. Might Mr Gerard be excused?

PN366

THE COMMISSIONER: Thank you, Mr Gerard.

<THE WITNESS WITHDREW [12noon]

PN367

MR MURDOCH: Commissioner, to complete our evidentiary case I want to tender an ACTU news release of 15 February 2001.

PN368

MR CRAWSHAW: Could I just act on it?

PN369

MR MURDOCH: Yes, thank you, Commissioner.

PN370

THE COMMISSIONER: I'll mark that as exhibit BHP4.

EXHIBIT #BHP4 ACTU NEWS RELEASE DATED 15/02/2001

PN371

MR MURDOCH: That's our evidentiary case, Commissioner. I have submissions of course but in the normal way I'd make them after my learned friend calls evidence if he intends to call evidence and after the advocates for the other two unions do likewise.

PN372

THE COMMISSIONER: Very well. Thank you, Mr Murdoch. Mr Crawshaw?

PN373

MR CRAWSHAW: Yes, I call Mr Vickers.

<ANDREW WILLIAM VICKERS, AFFIRMED [12.05pm]

<EXAMINATION-IN-CHIEF BY MR CRAWSHAW

PN374

MR CRAWSHAW: What is your full name?---Andrew William Vickers.

PN375

And your position?---I am the Queensland District President of the Construction, Forestry, Mining and Energy Union, Mining and Energy Division.

PN376

And do you have carriage of the industrial dispute relating to the negotiation of new agreements between BHP at various mines?---I have principal carriage of that at the State level, yes.

PN377

And have you been involved in negotiations over the last months with the company in relation to that?---Yes, I have.

PN378

In particular, can I ask you about a meeting that occurred on 31 January? Do you recall attending a meeting on that day?---Yes, it was the last in a series of meetings with BHP and it was interspersed with a trip to the Australian Industrial Relations Commission.

PN379

It's suggested that at the conclusion of the meeting you said words to the effect of, "I will recommend the document even though there are parts I can't agree with"?---Yes.

PN380

What do you say about that suggestion?---If I might be permitted to explain very briefly? The meeting commenced around 8.30 or 9 o'clock; it was originally scheduled for 8 o'clock and some time in the early afternoon, I think around 2 o'clock from memory, the meeting had to be suspended for a period of time whilst I prepared for and then presented and argued an application in the Australian Industrial Relations Commission brought by BHP in respect of the stoppage at its, I think from memory, Blackwater mine. My records would confirm that. We then - following on from those proceedings in the Commission we returned to the conference table with BHP and the discussions continued on for a considerable period of time. Towards the end of the discussions a number of the BHP representatives wanted to know what the union's position was in respect of the proposal as it stood at that point in time. I recall being asked on one occasion by Mr Gazzard, I think on another occasion by Miss Fellows, as to what was my position or what was the union's position; I forget the exact or precise words. I made it very clear at various stages towards the end of the meeting that I had a fundamental problem with the contractors clause in the proposal, particularly the hours that BHP were seeking us to agree with, and I hope I made it very clear to the company representatives that my concern with that provision would be made clear to the delegates. I also believe that during the course of - again towards the end of that very lengthy day - that I made comments to the effect that I understand very clearly that this is as far as we can go on negotiations with BHP; that's the document; I will recommend the document or put the proposal to the delegates on the basis that it is as far as we can go in negotiations with BHP; and I further explained that that was notwithstanding my concerns, particularly about the contractors clause, which I would make clear to the meeting of delegates which, at that stage from memory, Mr Crawshaw, had been pre-arranged. It may not have been - if it was - no, I'm sorry, it was being arranged because during one of the breaks we made contact with local delegates and attempted to make arrangements for the meeting.

PN381

All right. Can I ask you this: what do you say about the suggestion that in the negotiations that have been taking place to date, the CFMEU has not genuinely tried to reach an agreement with BHP?---I can't accept that as an accusation or an allegation, Mr Crawshaw. The CFMEU convened a meeting of delegates of all the BHP mines in conjunction with the other unions towards the end of November. The exact date escapes me, but, again, my diary would confirm that, and arising out of that delegates' conference were confirmation of the reports that we as state officials - I as a state official, other state officials had received about the manner of negotiations at the mines for new certified agreements and the commonality of the claims that the company was making at the mines. That was confirmed, then, at the delegates' meeting, and as a consequence of that we took the decision, which was endorsed by the delegates, that we ought to demand, I suppose, a meeting with senior BHP officers including, particularly, Mr Gazzard because his name was regularly mentioned to us by the local delegates as the person responsible for ensuring there was this apparent BHP commonality of claims. Demanded a meeting with senior officers to discuss that and see whether we could progress the enterprise agreement negotiations. A letter was written to Mr Gazzard. I think Mr Barker drafted and signed the letter and forwarded it. I think telephone conversations then confirmed a meeting for - my recollection is 5 December last year. I attended that meeting along with Mr Williams and Mr Harrison. Mr Williams from the CEPU, Mr Harrison from the Metal Workers. Mr Gazzard, Miss Fellows, Mr Gerard and Mr Grogan were representing the company, and on odd occasions flitting in and out of the room at Mr Gazzard's request were Mr Banano, the manager, I think, of the Hay Point Coal Terminal and his human resources manager, if that's what his term is, I think, Mr Stuart Hays. And that's - a proposal evolved out of that meeting that we would attempt collectively to try and negotiate I think at that point in time it was termed a key points agreement. That's a terminology that ended up on a whiteboard at some stage, and that we would make that attempt on - just before Christmas. It was the Wednesday, Thursday and Friday and that that was the 20th, 21st and 22nd of December. They were the three dates. That meeting was arranged. There was, to use the colloquialism, a cast of thousands because local delegates from each union at each mine were in attendance. Their travel, accommodation, etcetera, was arrange by BHP. BHP bought a number of their management representatives from each mine, so - I didn't take a head count. I think there were about 80 people in the room, and a negotiating team was established, not necessarily deliberately, but it occurred that way and up the front of the room were state officials of the unions including myself and I think the same senior officers from BHP that were at the meeting on the 5th. Both the company and ourselves prepared a document for that meeting. BHP prepared a document which they referred to as their "must haves" document, in inverted commas. The unions provided a document which was a slight revision on a log of claims, or a list of claims, that had been developed by a delegates conference some months previously. BHP were aware of that. They had copies of it before. We just reconfirmed it. There were two full days of negotiations in that forum with a large number of people. There were suggestions towards the latter end of the second day that we weren't making a huge amount of progress and perhaps that was because of the negotiators playing to the public audience. It was suggested, I believe by Mr Gazzard - I stand corrected on that. My recollection is that Mr Gazzard proposed that the meeting continue the next day, but it continue with a smaller group of people, which were only the immediate - well, the state officials of both parties, for want of a better word. That took place. Step back quickly. The meeting on 5 December, BHP put an absolute time frame of reach an agreement on the key points by midday on Friday, if that was the 22nd, or all bets were off. My words, not necessarily the company's words. That's the intent of it. Initially the 5 December meeting proposed a moratorium on protected industrial action and various applications by the company that were on foot or about to be on foot at that time. I think from memory the Hay Point application by the company to terminate the certified agreement at Hay Point was listed in the Commission on the 6th. So that moratorium was put in place. That meeting took place. That meeting changed from a cast of thousands meeting to a small group meeting, and at the end of that, notwithstanding the deadline that BHP imposed, it was accepted that we try - saying it was done without agreement. We said, "Right. We'll try and reach agreement by midday on the third day." There was no agreement, but the view was expressed by BHP officers in that meeting that sufficient progress had been made - words to this effect: sufficient progress had been made to warrant a continuation of negotiations and attempt to conclude an agreement. I recall expressing a concern that I thought an agreement was still unlikely, given the positions that both parties were putting, but it was worth a go. Arrangements were then put in place for a further 3 days of meetings around the middle of January. Without going to my notes I couldn't recall those exact dates.

PN382

Well, perhaps if I could just ask you about the same question in relation to the more recent past, over the last month. If it was suggested that the unions weren't genuinely trying to reach agreement over the last month, what would you say to that suggestion?---Well, 3 full days of meetings, and I mean full days of meetings. They weren't starting at 11 and finishing at 3. They were starting early and finishing late, often quite late in the evening, and I think from memory they were the 22nd, 23rd and 24th January. I'll stand corrected, again, on that without going to my notes. The production of a series of documents. I think from memory now three in total that arose out of those meetings. Mr Gerard was elected unopposed to do the drafting. And then a follow up meeting on 31 January which was the final meeting which concluded on "Well, this is as far as both parties are able to go, and this is the final document," which was the document which was then taken to two delegates meetings over a 2 or 3 week period and then to a round of mass meetings. I mean, I'm not quite certain what one has to do to convince anybody that there weren't genuine negotiations. There was a genuine attempt to try and reach some middle ground.

PN383

What is the current position insofar as the attitude of the union to genuinely trying to reach an agreement?---We stand ready to meet further with BHP to attempt to reach an agreement on either a common set of base proposals, which is the concept that it be negotiated through December and January, or individual mine site certified agreements. It seems a - I have to say, it seems a waste of time to negotiate exactly the same thing at seven different mines because BHP clearly have a common set of claims in my view from my experience, but we're ready to negotiate. On Monday of this week we were back in front of the Commission, in a commission-convened conciliation conference. BHP received from us a document hastily prepared but nonetheless prepared, which we offered to make in the early part of the conciliation conference so that - as think as one of the officers of BHP said, they wouldn't die not knowing what the - why it was that the rank and file had rejected the proposal. So that document was prepared, presented to BHP. We're happy to meet with BHP, but the collective position of both parties appear to be that we're very wide apart, and at this point in time - well, sorry. As of Monday, there wasn't a lot of point in attempting to either continue to negotiate or to seek the assistance or accept the assistance that the Commission offered because there was still a wide gap between the parties.

PN384

So what do you say as to the compatibility of the industrial action presently being taken with what you say is a genuine intention to negotiate an agreement?---The unions have instituted the industrial action with the support of its members and indeed the direction of its members in an endeavour to push BHP closer to an agreement. We want an agreement with BHP.

PN385

Now, you were here when Mr Murdoch opened, and you heard the suggestion that the situation in relation to negotiation has deteriorated rapidly in recent weeks and that this is coincided by a campaign by the ACTU designed to show that BHP is a bastard, and that the deterioration and the industrial action that's being taken this week has some connection with that broader campaign against BHP. What do you say in relation to that suggestion?---Well, in short I say, "Nonsense," but I perhaps ought to explain it a bit. Mr Maher, the general president of our division of the CFMEU, contacted me by phone and I have no idea of the date, but it was in the last 2 weeks or so. Well, I know it wasn't this week. He contacted me by phone to advise me that he was going to a meeting convened by the ACTU to talk about some sort of a campaign against BHP, and what were my views about what our division's position and input ought to be into that meeting. I made it very clear to Mr Maher that my position in respect of some overarching campaign against BHP could not and would not and must not interfere in our capacity and our right to reach a certified agreement or a series of certified agreements with BHP. I said if someone wants to play around with international corporate campaigns, that's fine, but I have my focus of attention on finalising an agreement with BHP for the people that I directly represent in Queensland. Now, I would believe, but I wasn't at the meeting. I would believe that Mr Maher would have ensured that my concerns would have been dealt with at that particular meeting. I wasn't at the meeting, however, but I have that much confidence in Mr Maher to be very comfortable that he would have taken that message.

PN386

Did Mr Maher dissent from your opinion?---Certainly not on the telephone conversation I had with him. He concurred and said, "No, I understand. That's my position as well."

PN387

And have you put that position into practise in recent weeks in relation to the negotiation and dealings with BHP over the certified agreements?---The focus of my attention with BHP is the finalisation of acceptable certified agreements across the BHP operations in Queensland.

PN388

And has any of that focus included what I might call the implementation of a broader agenda - - -?---Absolutely not.

PN389

- - - against BHP? Sorry?---Absolutely not.

PN390

Yes. Thank you.

PN391

THE COMMISSIONER: Mr O'Sullivan? Ms Nadj? Mr Murdoch?

<CROSS-EXAMINATION BY MR MURDOCH [12.23pm]

PN392

MR MURDOCH: Mr Vickers, the notification that was given on Friday last of your union's intention to commence stoppages at the various BHP mines on Wednesday this week?---Yes.

PN393

You were aware of that before the notice was given?---I'm sorry, Mr Murdoch. I've missed that.

PN394

Look, you put the notice in, didn't you, of intention to take industrial action?---The national office did.

PN395

All right. Well, were you aware of it before they did?---Yes. Yes.

PN396

You know that the metal workers, or the AMWU and the CEPU took like steps at approximately the same time last Friday afternoon?---I understand they did, yes.

PN397

What was the manner of the collaboration between the three unions to achieve that virtual coincidence of timing with that critical step?

PN398

MR O'SULLIVAN: Mr Commissioner, I've got an objection to that question. I don't know how this arises in cross-examination from the examination-in-chief. Mr Vickers, when speaking about the other two unions, which is the CPU and the AWU, was in reference to single bargaining unit meetings and meetings with BHP representatives in meetings prior to the lodging of those protected action notices, if the Commission pleases.

PN399

THE COMMISSIONER: Well, I'm happy that the question - - -

PN400

MR MURDOCH: Yes, thank you, Commissioner. What was the method of co-ordination between the three last Friday?---I can only tell you of my involvement, Mr Murdoch, and it actually proceeded Friday. Mr Williams, the State Secretary, he may not have been at the time, the now State Secretary at least of the CPU, travelled with me through Central Queensland and addressed the series of mass meetings that took place on the Tuesday, Wednesday and Thursday, and I undertook - I'm sorry, we were talking about it at various times about what might happen depending upon the outcome of the various meetings, whether or not notices would go in, when notices would go in, and I confirmed with Mr Williams, by phone, I think sometime during the course of Friday, I think around lunchtime that our union was putting protected industrial action notices in and that the National Office was doing it, so I certainly advised Mr Williams, I think by phone, I believe around lunchtime, perhaps a little later, 12 o'clock, 1 o'clock on Friday that our union was putting in protected industrial action notices. Now, what was done between my National Office and Mr Williams's office, I don't know.

PN401

And in relation to the metal workers?---I didn't speak to any of the metal workers at all. They put in an apology, or asked me to put in an apology or asked Mr Williams to put in an apology, at each of the meetings that we, Mr Williams and I, addressed on Tuesday, Wednesday and Thursday about the unavailability of a State official and I didn't contact - no, I didn't make any contact with an officer of the metal workers on Friday. Mr Williams may have, I don't know.

PN402

And was there a decision taken by one of the Executive or governing bodies in your union to proceed and give notice of the industrial action that was given last Friday?---Yes, that was done between myself and Mr Maher.

PN403

Well, what body is that in the union?---It's part of the National Executive.

PN404

What a two person National Executive?---No, there's six, in fact. Mr Maher, I understand, consulted with the other officers who were available in the country. Mr Watson, who's on the National Executive, was overseas, I think, from memory. Mr Maher, I understand, communicated with Mr Watson and the other Mr Watson, Mr Bruce Watson, and Mr Howard Fisher. Mr Coates, who's also on the National Executive, was on annual leave, if my memory serves me correctly.

PN405

Did it go to a vote or was it done on a more informal basis?---Done on a quite informal basis.

PN406

So that we wouldn't anywhere see a minute of a vote of any Executive body?---I don't believe so.

PN407

In any event, this informal process took place Friday of last week?---Yes.

PN408

And you were, of course, aware of the recommendation which had been made by Commissioner Bacon on 22 February?---Yes, I was, yes.

PN409

And did you convey the terms of that to Mr Maher prior to the two of you consulting with others and determining to issue the notices of the intended stoppage?---I think I may have organised the recommendation to be faxed to Mr Maher. If I didn't do that I certainly - I recall speaking to him about the recommendation that existed, yes.

PN410

And why was it that the Commission's strong recommendation, in relation to not taking industrial action with Monday a conciliation pending, was this regarded?---We didn't believe that the recommendation would achieve, or compliance with the recommendation, would achieve any formal result whatsoever. I'm sorry, Mr Murdoch, I should continue. We had BHPs bottom line and I had received both a phone call and then a confirmatory fax document from Mr Gazzard on the Monday of that week, I believe it was, confirming that if the proposition, the template agreement, wasn't voted on by our membership or the mine workers, I forget the exact words, during that week which had just all but past by Friday, or if it was put to meetings and rejected, then it was withdrawn.

PN411

Well, in any event, you and the others consulted on Friday last have the knowledge of the Commissioner's recommendation of the 22nd?---Oh, no question about that, yes.

PN412

And you've said that the action, that you took yourself, was based upon a belief that the conciliation proposed by the Commissioner would achieve nothing?---Yes.

PN413

Now, so far as the union is concerned, you've said that you're aware that Mr Maher went to an ACTU meeting to discuss a corporate level campaign against BHP?---Yes, he told me he was going to one, yes.

PN414

Okay. And you received correspondence from Mr Maher, did you not, on 14 February 2000. Look, in fairness, I'm talking about the documents GWG9?---If I could?

PN415

Please?---Yes, I have those, Mr Murdoch.

PN416

Okay. Well, you've told the Commission about the phone conversation that you had with Mr Maher in which the two of you discussed his going to the ACTU meeting?---Correct.

PN417

And I take it that the ACTU meeting that you're referring to is the one that's referred to in the Combet letter of 12 February, namely, Friday, 16 February?---I assume so, yes.

PN418

Do you recall when you had the phone conversation with Mr Maher that you referred to earlier?---No, I don't precisely, but assuming that the meeting which Mr Maher rang me about that he was going to was the meeting which is the meeting of 16 February, then it was either - it was some time prior to 10.30 on Friday the 16th and I have absolutely no recollection as to whether that was an hour before the meeting or the day before the meeting or two days before the meeting, Mr Murdoch.

PN419

Okay. And what you do recall, though, is that you did get these four pages that make up GWG9 from Mr Maher?---I have to say that I recall the first two pages and that's not to say that one of the documents that I've read in the last three weeks wasn't one with four pages on it, but I certainly recall the first two pages.

PN420

And I take it that in line with the technology available they came via facsimile and not by Australia Post?---If they're in my office somewhere and they're on yellow paper, they came by fax because that's the system we use which isn't terribly novel.

PN421

My recollection from previous disputes is that communications between Mr Maher's office and the lodgers is by means of fax?---Mostly, yes.

PN422

And this particular document went both to the District Officers, which include yours, as well as to the lodgers?---That's to whom it's addressed, yes.

PN423

All right. And your understanding is that that wasn't confined to Queensland, that included the District Officers in other states?---Oh, that's the assumption that I would draw, but I don't know.

PN424

There was a meeting, wasn't there, on 15 February in Emerald of dalliance?---Oh, yes.

PN425

And you attended that?---I did. I called it and attended it.

PN426

And who else, apart from yourself, attended that meeting?---A lot of delegates whom I wouldn't pretend to try and name, I'd recall some faces. Mr Williams from the CEPU attended and both Mr Lambley and Mr Pearce, the Central Queensland based Vice Presidents of the Queensland District of my organisation were there.

PN427

And the southern visitors who were there?---There were three lodge officers from - and I don't know which lodges - do you want their names because that's going to test the memory a bit?

PN428

If you can remember the lodges?---No, the lodges I can't. I don't know which lodges they belong to. I think Noel Everall was there. Taffy somebody was there. The other bloke I don't even know his name. This is a bit embarrassing, Mr Murdoch, but I apologise, but there were three lodge officers from New South Wales, South Coast mines of BHP.

PN429

Mr Gerard's helping us both, Mr Vickers?---He's always been very helpful.

PN430

And well informed. Noel Everall from Appin Lodge?---If he's from Appin - I know Noel Everall and I know he was there. Yes.

PN431

And Mr Hasiuk from Cordeaux?---There were three of them there. One of them I don't know and wouldn't recognise again I don't think.

PN432

And Gordon Lester from Tower?---Yes, that's Taffy, he was there. But I don't know his proper name or his last name for that matter, I'm sorry.

PN433

Now, what you do know is that those three visitors are not employed under any of the existing certified agreements that are currently being renegotiated?---In Queensland, no, they're not.

PN434

Now, you said earlier in answer to my learned friend, Mr Crawshaw, that you had the principal coverage of the industrial dispute at State level?---I think I said carriage - principal carriage.

PN435

Okay. And you said at State level?---Yes.

PN436

Do we take it that someone else has principal carriage of it at Federal level?---Not of the negotiation of the Queensland agreements I don't, Mr Murdoch.

PN437

Well, what role does Mr Maher have?---Well, he's the General President of the organisation. He has an overseeing role in any and all matters of relevance to members of the organisation.

PN438

And this week you've been in Brisbane I take it since the strike commenced?---Yes, the first week of this year that I've spent the whole week here.

PN439

And Mr Maher has been where on Wednesday, Thursday and today?---One day he was here in the Commission and I - - -

PN440

Well, hasn't he been up at the sites where the strike is taking place?---In Central Queensland? Not to my knowledge, no. In fact I spoke to him on one day and he was in Lithgow. I spoke to him on another day and he was in Canberra. And another day he was here sitting beside me in a Courtroom.

PN441

Now, so far as Mr Maher's involvement is concerned you've said that you consulted with him in relation to the notification of the strike?---Yes.

PN442

Did you endeavour to persuade him to desist from notifying the strike in order to comply with the recommendation that the Commissioner made on Thursday of last week?---Did you say desist?

PN443

Yes?---No, I did not.

PN444

Did you recommend to him that he ignore the Commissioner's recommendation and notify the intention to commence the strike on Wednesday of this week?---No, not a recommendation. I expressed a view that notwithstanding the recommendation that existed we should proceed with the protected industrial action notices.

PN445

Now, I asked you earlier about GWG9?---Yes.

PN446

And it's true, is it not, that there is a corporate campaign by the CFMEU Mining and Energy Division against BHP?---No. There's not by our division of our union against BHP. No.

PN447

Well - - - ?---Well, just to be absolutely clear about that - because it may well depend on what your definition of a corporate campaign is. My definition of a corporate campaign and what the union has applied the terminology to in another corporate campaign, that's certainly not on foot with BHP at this point in time with my organisation.

PN448

Let's be precise about it. If you look at Mr Maher's letter of 14 February - - - ?---Yes.

PN449

There's a reference there to a corporate level campaign against the company?---"I intend to commit our union to a corporate level campaign against the company", yes.

PN450

And there is such a corporate level campaign in existence?---If one has arisen out of this ACTU meeting at this point in time, Mr Murdoch, I haven't been advised of it. But that's not to say that out of that meeting on 16 February something hasn't been committed to but it hasn't been communicated to me as yet. It may well be sitting in my in-tray.

PN451

If there was no such campaign why was there a communication of this document to each of the BHP lodges?---Well, two things, Mr Murdoch. I can't answer that because I didn't communicate it to the lodges, Mr Maher did. The second thing is very simply the letter of 14 February talks about the meeting which is going to take place on 16 February, as I understand the documents. And they've been forwarded to me. I didn't produce any of them.

PN452

You were aware of their distribution to the lodges in Queensland?---I assumed they would have been distributed only from the heading on the - if you like the distribution or the addressees to district offices and BHP lodges. I assume that if Mr Maher put that on the top of his letter which he signed then he would have organised for them to be sent to all of the BHP lodges, but I don't know.

PN453

And the day following, that's the 15th - - - ?---Yes.

PN454

- - - you attended the meeting in Emerald at which the decision was taken to conduct direct action against BHP Coal?---The decision was taken to recommend that to our membership.

PN455

And that recommendation was taken to a round of meetings within the next week and the recommendation was accepted?---Yes.

PN456

Well, the meetings commenced on 20 February, didn't they?---Yes. Yes.

PN457

Well, within the week?---I think so, yes. I'm not trying to be cute, I'm - I seriously have lost track of time over the last number of weeks.

PN458

Now, so far as the intention to take strike action was concerned you said earlier that the decision of the union to take the strike action had the endorsement of the members?---Yes.

PN459

And are you referring there to the mass meetings that were held in the round commencing about 20 February?---Yes.

PN460

All right. That round of meetings that you say endorsed the strike flowed out of the 15 February delegates meeting in Emerald?---That's correct.

PN461

That you attended?---That's correct.

PN462

And that the southern visitors attended?---Yes, they were there. They didn't vote on the proposition though.

PN463

Did they speak at the meeting?---They did, in fact, yes, as most visitors to our meetings do.

PN464

And the business of the meeting was the consideration of the template agreement?---Yes. Or, it was, more correctly, Mr Murdoch, the further consideration, because there had been a delegates meeting that went on the previous week, I think, from memory.

PN465

But this wasn't a regular scheduled meeting; it was a specific meeting to consider the templates?---Yes, yes. Yes, yes.

PN466

Now, the evidence that you've heard this morning is that the contractors at the various sites, with their members of the three P and E unions, are on strike; have for the most part stopped work as well?---Yes, I've heard that evidence, yes.

PN467

And what part did you play in organising the involvement of contractors in the stoppage?---Absolutely none.

PN468

You are, though, the person who has the principal carriage of the campaign, you said?---Yes. Exactly, yes. That's the campaign against BHP. We don't have a campaign against contractors.

PN469

Well, as the person with principal carriage, what have you done in relation to the fact that contractors have been taken out on Wednesday, Thursday, and again, today?---I heard a complaint, and I think it may have been on Tuesday evening in the conciliation proceedings, that two contractors - and I think they were named as Callenders and REB - had allegedly - or it may have been Eagle - Callenders and - two contractors anyway, had allegedly been contacted by delegates of the unions, and instructed or advised, directed - whatever the term was, and I don't recall it; I didn't write it down - not to attend work. I, during the course of that evening, and indeed the next day, either made contact myself directly with some delegates, or asked for the assistance of other officials, including Mr Barker, to make contact with delegates, to ascertain what had been said by whom and under what circumstances. And the only confirmation that I got, either directly or indirectly, Mr Murdoch, was that, yes, contact had been made with two contracting firms to advise them by delegates to advise them that the - that protected industrial action was being taken on the - and when it was going to commence.

PN470

Well, what's the purpose of doing that unless you're endeavouring to take them out?---Well, you advise people - curtesy.

PN471

What's the purpose of having picket lines there referring to contractors employees as scabs?---I'm not aware that those things are at the picket lines, Mr Murdoch. I haven't been to any of them.

PN472

I see. And do you have no reports as to there being pickets?---I know that there are pickets in place.

PN473

Well, the pickets are there to stop the contractors employees going in, aren't they?---No, they're not.

PN474

Well, what's the purpose?---The purpose of the pickets is to provide a further form of communication with workers, generally, about the dispute between BHP and the unions.

PN475

But workers, generally, will not be subject to the proposed P and E agreements that are said to be under negotiation, will they?---They may well be, in fact.

PN476

Well - - - ?---Because the proposed certified agreements, both from what - both from BHPs proposal and from the counter-proposals from the unions, deals specifically with contractors employees; their wages and conditions of employment.

PN477

Well, they're persons who are not subject to the existing bargaining periods; you know that, don't you?---No, they're not - they're not subject to the present bargaining periods; not the ones that are in contention here, anyway. Some of the contractors may have their own bargaining period to - they're not these.

PN478

Well, Mr Vickers, you still haven't explained why you have pickets there to communicate with people who, you said, the unions are endeavouring to communicate with, when those people aren't subject to the bargaining periods?---It's communication, Mr Murdoch. It's the same reason that BHP issues press releases; to let everyone know what's going on. That's what we're doing at the picket lines, and expressing our unease, unhappiness with BHP, in a public, peaceful way.

PN479

Mr Vickers, isn't it the case that the pickets are there to ensure that contractors employees go out as well?---No.

PN480

And isn't it the case that you've been aware, through the week, that the pickets have been there each day?---I understand that they are in place probably at - well, not all are mine - so I have an understanding that there's a sharing of a picketing arrangement between Gregory and Crinum, but I don't have that detail; I haven't been anywhere near them.

PN481

And the picketing is there at all times that contractors employees may be seeking to enter the sites to commence their normal work?---It's my understanding that the pickets are there all the time; 24 hours a day.

PN482

And the purpose of that is to ensure that efforts are taken to prevent contractors employees entering the sites to do their jobs?---Same answer to the same question before, Mr Murdoch; no.

PN483

Now, you were asked about paragraph 26 of Mr Gerard's affidavit?---Yes.

PN484

And as I recall it, you said that you remembered that you had stated, "I will recommend the document." But then you qualified it and said, "It might have been put up the document."?---Yes. Because I think I was in fact specifically asked, "Will you recommend the document?" almost as the last series of questions in - at the end of a very long day. And I think my answer to that specific question was yes, subject to what I'd said previously.

PN485

Well, I want to be very careful, in fairness to you, because there's a big difference between "recommend the document" and "put a document up", and your recollection is that it was "recommend" that you agreed to do?---Mr Murdoch - and I know that you've been in conciliation conferences and negotiations before, because we've sat across the table, and at the end of the meeting on the 31st - I should remember; it's my daughter's birthday, and I didn't see her that day - at the end of that meeting, for a period of time; 5, 10 or 15 minutes, there was a series of questions and replies going backwards and forwards across the table about where were we now at? Now that we'd argued each other to a standstill, where were we at, and there were a series of responses and propositions put. And there were - I made a series of replies to a series of questions, some long-winded as I'm capable of doing; some very short-winded. I recall telling the meeting that I would take the proposal to the delegates meeting and advise them that this is the best that can be negotiated. I recall being asked by someone on the other side, "Will you recommend the document?" as almost the final exchanges between the parties on that evening. And I think I said, "Yes."

PN486

All right. Thank you. So we've gone from a situation where, on 31 January this year, you were prepared to recommend the document, to the situation where you've said that Monday, this week, there was a very wide gap between the parties?---Yes.

PN487

So that obviously, in the month that's elapsed, the position has deteriorated from one in which you were prepared to recommend acceptance to one where there's now a wide gap?---Yes, that's correct. But in that period of time, I've done a round - I've done two delegates meetings, and a round of mass meetings. And I have got a very clear indication and direction from my membership as to the acceptability or otherwise of the proposal that I took to the delegates conferences and, indeed, to the mass meetings.

PN488

You were though at all stages consulting with your constituents at the mines?---No, in fact, I wasn't; not at all. The agreement between the negotiating teams was that all of the discussions and negotiations were on a completely without prejudice basis, and I made no comment at all to any of my constituents from - through the January - to the January meetings. I mean, there were 80 people present on the first two days in December and then the negotiating team reduced to a team of eight, four from each side, and what transpired in those negotiations it was agreed, I understood, and I certainly complied with what I understood was the agreement, that none of what was spoken about in those meetings was to go outside that room; completely without prejudice, off the record negotiations.

PN489

I think we're at cross-purposes. I said at all stages meaning at all stages through the very long months since this matter was originally kicked off. You'd had a lot of meetings with your constituents over that period through year 2000?---Oh, there had been a series of meetings at various levels; yes.

PN490

And at the meeting a few weeks earlier when there had been the 80 in attendance - - - ?---Yes.

PN491

- - - the 80 included people from your lodges, did it not?---Yes, it did.

PN492

And no doubt you would have discussed with them what they were prepared to agree to and what their expectations were, etcetera? I'm not asking you what but that's the purpose of having people there with you, isn't it?---Oh, on the first two days? No, there wasn't a lot of caucussing, if you like; it was more about the process that that was what was caucussed in those first two days; and finally on the final day before we reached an agreement about the process with BHP, I did caucus yet again but in detail on this occasion with all of the assembled delegates and put the proposition about the process, and simply put a proposition let us see how far we can go; and there was no detailed riding instructions from that last delegates meeting about what it was I could or couldn't concede to. It was a direction generally, go and see how good you can do.

PN493

Mr Vickers, the union's campaign as conducted at the picket lines this week includes an attack on the credibility of BHP Coal, does it not?---I don't know what is happening precisely at the picket lines.

PN494

Well, let me help you?---Yes.

PN495

Clearly advanced prepared material, mass produced, it says, "Broken hearts, broken promises"?---Oh, yes, that's an old slogan; yes.

PN496

An attack on the company's credibility?---I suppose it is; yes.

PN497

You were aware that preparations were being made to conduct that campaign?---The broken hearts and broken promises I think goes back months and months and months - - -

PN498

The - - - ?---Possibly years. I'm sorry, Mr Murdoch.

PN499

The campaign that is being run in conjunction with it at the picket lines has mass produced signs that say "Rick's a prick"?---I wasn't aware of that.

PN500

I see. Do you have any clues as to who Rick might be?---It would be an assumption.

PN501

And that would be?---Mr Gazzard.

PN502

I see?---That's the first time I'm aware of that, Mr Murdoch, and I am personally not very happy about it but I can't do anything about things that I only find out about in the witness-box in the Commission.

PN503

But you are the person with carriage - - - ?---I am.

PN504

- - - principal carriage at stake?---Of the negotiations, yes, absolutely. Absolutely.

PN505

Well, is there a distinction between the negotiations and the strike?---No, there's not.

PN506

Well, you're running the negotiations; are you running the strike?---Yes.

PN507

Well, if you're running the strike, why is it you're ignorant of the way in which it's being run at ground level?

PN508

MR CRAWSHAW: Well, I object to this. My friend puts a question about Rick. The witness doesn't know it, and then he asks another question on the assumption that the fact that Rick has been mentioned in a sign is evidence. It's not evidence because my friend mentions it in a question. There's no evidence that Rick has been mentioned in any sign so he can't ask a follow-up question that assumes that Rick has been mentioned.

PN509

THE COMMISSIONER: I actually thought we had moved on from Rick, but we were trying to discern or distil from Mr Vickers whether he approves every T-shirt and sign is on the picket lines. Is that where we're going, Mr Murdoch?

PN510

MR MURDOCH: Commissioner, I'm not suggesting that he personally signs off on every sign but I'm endeavouring to get an indication from him on an important matter and that is he says he's running the negotiations and he has confirmed that he's running the strike as well.

PN511

THE COMMISSIONER: Right.

PN512

MR CRAWSHAW: Well, it's objectionable. I've allowed it to go on but the cases have drawn a distinction between industrial action under Section 170MW and picketing, and picketing is irrelevant to your consideration under Section 170MW.

PN513

MR MURDOCH: Commissioner, that's a proposition that, in my submission, doesn't stand the test because the picketing is clearly a way in which, as Mr Vickers explained to you, participants in the strike explain what they're about and you're entitled to take notice of what they say at the pickets because that's how we learn why they're there, why they're demonstrating. They don't hold up signs that say - - -

PN514

THE COMMISSIONER: We like BHP?

PN515

MR MURDOCH: Well, they do in fact.

PN516

THE COMMISSIONER: They do hold up signs to say they like BHP?

PN517

MR MURDOCH: I'm sorry. I thought you said dislike BHP.

PN518

THE COMMISSIONER: No.

PN519

MR MURDOCH: We're still looking for the latter category, Commissioner.

PN520

MR CRAWSHAW: But my friend says it doesn't stand the test. My client argued this on a number of occasions in relation to the Hunter Valley Number 1 dispute, and the test that stood is that it went to the High Court and the High Court eventually upheld the Full Bench decision, and particularly the judgment of the President of the Commission in the Hunter Valley matter; and that judgment excluded picketing from the consideration of Section 170MW, so I don't know where my friend gets the proposition that it hasn't stood the test. There isn't something that has been more tested I would have thought.

PN521

THE COMMISSIONER: Well, I mean, the onus is obviously to establish that there is not a genuine attempt to reach an agreement, and that there is damage to the economy or - - -

PN522

MR MURDOCH: That's right. In any event, Commissioner, it gets no better if I say it a second time in response to my learned friend. The relevance of it is that through what people say at picket lines one is able to ascertain what they're on about and that's relevant, and we've moved on from that in any event.

PN523

THE COMMISSIONER: Mr Murdoch, do you intend to be much longer with Mr Vickers? I'm not trying to rush you. I'm just trying to decide whether we should have lunch now or whether we should wait to the end of Mr Vickers evidence.

PN524

MR MURDOCH: Commissioner, I'm the one who has been saying we want the matter to proceed in an expeditious way. I'd like to finish Mr Vickers cross-examination and hopefully his evidence - - -

PN525

THE COMMISSIONER: Very well, thank you.

PN526

MR MURDOCH: - - - and I won't drag the matter on.

PN527

Nothing further, Commissioner.

PN528

THE COMMISSIONER: Thank you. Mr Crawshaw.

<RE-EXAMINATION BY MR CRAWSHAW [1.06pm]

PN529

MR CRAWSHAW: Mr Vickers, you were asked some questions and gave some answers about the decision making process in relation to taking the protected industrial action this week, was the taking of protected industrial action discussed at the various mine site meetings that you went to, I think, you went with Mr Williams?---Mr Williams, yes. Yes, each and every one of them was part of the proposal that was put to the meetings.

PN530

And what was the proposal that was put to them?---The proposal that was put to the meeting, paraphrasing it, was that BHPs proposal be rejected as unacceptable, that there be an industrial campaign against BHP of protected industrial action commencing with the 7 day stoppage.

PN531

And was anything put to those mine site meetings about that industrial action being connected with broader agendas?

PN532

MR MURDOCH: I object, Commissioner. That doesn't fairly arise out of cross-examination. I didn't question Mr Vickers in relation to that matter being put to those meetings.

PN533

MR CRAWSHAW: Although it was done in a fairly tentative sort of way in the sense that my friend didn't put it squarely to the witness that this industrial action was connected to, or the result of, some broader agenda, I'm sure at the end of the day, given his opening, my friend is going to seek to rely on the evidence that was called from this witness in cross-examination as to there being such a connection, and he asked questions about the decision making process within the union and - - -

PN534

THE COMMISSIONER: I'm going to allow it, Mr Crawshaw.

PN535

MR CRAWSHAW: Can you remember the question?---I can, Mr Crawshaw.

PN536

Well, you're doing better than me?---The principle report given to the mass meetings was given by me. It went for over an hour and a half on each occasion. They were then followed by - the meetings were then followed by questions and so on. Nothing in the report that I gave mentioned the ACTU meeting or proposed campaign or otherwise and simply because it's not on my agenda. It wasn't put to the meetings. It wasn't raised at the delegates meeting either.

PN537

Yes, thank you.

PN538

THE COMMISSIONER: Thank you, Mr Crawshaw.

PN539

MR MURDOCH: Just arising out of that, Commissioner, in fairness to me, since that was opened up, in relation to what was said, I'd like to just ask a question that arises directly out of that.

PN540

MR CRAWSHAW: Well, my friend would have to get leave and - - -

PN541

MR MURDOCH: Well, I'm asking for leave.

PN542

MR CRAWSHAW: We don't mind him having another crack. He might put it more squarely this time.

PN543

THE COMMISSIONER: Mr Murdoch.

<FURTHER EXAMINATION BY MR MURDOCH [1.10pm]

PN544

MR MURDOCH: Mr Vickers, at that round of - sorry, at that meeting, which was the meeting at - at the round of mass meetings, that was the round of mass meetings that commenced about the 20th?---Yes, around about then.

PN545

You did not recommend acceptance at those meetings, did you?---No, I put the proposal that came of the delegates meeting.

PN546

I'll just ask, you didn't put a recommendation of acceptance?---No.

PN547

Thank you.

PN548

THE COMMISSIONER: Thank you, Mr Vickers.

PN549

MR CRAWSHAW: Might Mr Vickers be excused.

PN550

THE COMMISSIONER: He might be.

<THE WITNESS WITHDREW [1.15pm]

PN551

MR CRAWSHAW: As I understand the situation, the applicant in this matter has taken action in the Supreme Court of Queensland, and there is a hearing at 2.30. It's unclear to me exactly who the respondents to that are, but suffice it to say that while he's been in the witness-box, Mr Vickers' secretary, I think, has been notified of it. So in all of those circumstances, I would ask that this matter be adjourned so that both the principals such as Mr Vickers and the legal personnel involved can take part in that hearing. It's clearly a matter, as I attempted - I attempted to question on this - that is relevant to your discretion, but it's also a matter that is relevant, apart from the inconvenience of my client and its officers attempting to deal with the same matter or similar matters in two jurisdictions, it may well be relevant to your decision whether or not to suspend the bargaining period as to what happens in the Supreme Court; and so I really put it on those two grounds that there should be an adjournment of this made in order that my client can properly deal with the Supreme Court matter, firstly; and secondly, because that matter deals with the matters or some of the matters - well, certainly deals in the broad with this dispute - it may well affect any decision that you might make.

PN552

I can think of a scenario where you might be minded to suspend the bargaining period on the basis of the present facts, and then once you knew what had happened in the Supreme Court, you would not be of the same mind.

PN553

THE COMMISSIONER: Very well, thank you. Do you the other unions have any - is the action in the Supreme Court involving the other unions, do we know?

PN554

MR O'SULLIVAN: I've attempted to get in contact with my office. No, I'm not aware of any such action against the organisation. I'm quite - I didn't feel that I had to make that contact after the statement made in the witness-box previously that there was no contemplation of any other action dealing with this industrial action. So I don't know; I'll wait to see what happens.

PN555

THE COMMISSIONER: Well, what can you tell us about all that, Mr Murdoch?

PN556

MR MURDOCH: I'm not involved in that matter, Commissioner, but I am instructed that it's not to do with the strike per se. It's to do with the shenanigans of picketers, and my learned friend of course seeks to drive a distinction between the two. But while it's not a valid distinction, I'm instructed that it's about the picketing, not the strike itself. It's about the activities of people on the picket. I've struggled to see how Mr Vickers would be required there, because he has told you that he doesn't know anything about what is going on in the picket, so it's hard to see how he can be of any help up in George Street. As to the other unions, they are large organisations, and nothing has been said in relation to any inconvenience there.

PN557

THE COMMISSIONER: Well, what is the action in the Supreme Court? Is the action in the Supreme Court aimed at ending the pickets, or is the action in the Supreme Court aimed at ending the strike?

PN558

MR MURDOCH: My instruction is it's aimed against the pickets and their activities.

PN559

MR CRAWSHAW: Perhaps my friend my know who the respondents to the action are.

PN560

THE COMMISSIONER: Do you know that, Mr Murdoch?

PN561

MR MURDOCH: I've seen a draft in the last few minutes - a draft statement - a draft application - and the respondents to that are the registered organisations.

PN562

THE COMMISSIONER: And this relates to the conduct complained of in the 166A submission?

PN563

MR MURDOCH: Well, the claim - this is in the draft, which I assume is the substance of what is being sought. The plaintiffs claim an injunction restraining the defendants and each of them, whether by themselves, their officers, delegates, servants...

PN564

TAPE FAILURE

PN565

MR MURDOCH: ...prescriptions as to the locations of picket lines, but nothing in the document that's been handed to me to suggest that there is any civil action aimed at restraining the strike.

PN566

MR CRAWSHAW: Well, my friend is prepared to abandon the argument that this proceeding has anything to do with picketing and is prepared to undertake that the Supreme Court action is only to do with picketing, there would be something to his suggestion that this is an unconnected action, but the fact of the matter is, ironically enough, in answer to my recent objection, my friend maintained that you should consider picketing in this case, and presumably he's going to argue that, and therefore the Supreme Court action and what happens there is highly relevant to your determination. As for the suggestion - on the inconvenience argument, as to the suggestion that Mr Vickers wouldn't have anything to contribute to that matter, that's a rather facile suggestion; I won't dignify it by replying.

PN567

MR MURDOCH: Commissioner, I'm not prepared to give such an undertaking. It's an attempt to manipulate, quite inappropriately, proceedings in the Commission. The Commission has commenced its proceedings. We've completed our case. It's been obvious from the commencement this morning that we'd be confronted with any and every attempt to procrastinate and delay, and delay of course acts against our client, because it's our client that is suffering the loss in terms of production, suffering the disruption of its activities, and any excuse is good enough.

PN568

These are large organisations. They have competent advisers. They have numerous officials. To suggest that they can't conduct two sets of litigation simultaneously is, I would submit, quite ridiculous. As to whether the outcome of the Supreme Court proceedings has a bearing on you and your deliberation in the matter, Commissioner, you have evidence in relation to what has occurred to date. A Supreme Court order can't retrospectively remove what has happened so far. So that in my submission, the evidence before you as to past conduct will be unaffected by any order of the Supreme Court which of course will, if it is made, deal with the future.

PN569

There is no basis, Commissioner, for the request for adjournment. It is, in my submission, a naked attempt to delay; to spin the matter over to Monday, by which time my client suffers more loss and the damage continues. So given the gravity of the situation, Commissioner, there is a need, in my submission, to weigh up considerations of fairness. What you have is a situation where delay favours those who set out to damage us and harm our reputation. Delay disadvantages my clients. And remembering, Commissioner, that my clients, to their peril, concurred with your recommendation that you made Thursday of last week.

PN570

Those who treated your recommendation with contempt are the people who today seek to drag out, procrastinate and maximise the damage to my client's reputation. The request for an adjournment should, in my submission, be rejected. The matter should proceed today. The Commission should, in my submission, deal with the application and full suspension. If there's a submission from my learned friend in relation to interrelated causes of relief, that might go to the length of any suspension. The Commission might, for example, consider a suspension to take us through to a resumed hearing on Monday where we could then debate the outcome of any litigation in other places.

PN571

The Commission has enormous flexibility with a suspension of the bargaining period, and given the conduct of the parties, given the balance of convenience, there should not be an adjournment which just has the effect of giving the tactical advantage to the aggressor; the tactical advantage meaning we continue suffering the loss through to next week. So I strongly oppose the request for adjournment.

PN572

MR CRAWSHAW: If my friend is alleging that I am acting in a manipulative fashion to delay these proceedings he had better take that complaint to the proper authorities, because I'm getting sick of him putting to you that I am a tool of my client in putting up a false basis for an adjournment. As for conduct, when Mr Murdoch's client goes to the Supreme Court they will have a duty to reveal to the Supreme Court that these proceedings have been commenced and are on-foot. Similarly, when Mr Murdoch's client comes before you, if they were acting under the Act in accordance with equity and good conscience, they would have told you that this afternoon, or today, we are commencing a proceeding in the Supreme Court relating to the picketing if that's how confined it is.

PN573

So don't let Mr Murdoch lecture us about proper standards of conduct when they've come down to you, running this case, and at the same time they've got another set of lawyers up in the - preparing a case in the Queensland Supreme Court, and taking action while we're running it down - while we're running the case down here in relation to the same factual circumstances in the Supreme Court. They're not in a position to lecture anyone, Mr Commissioner.

PN574

MR O'SULLIVAN: Mr Commissioner, I'd have to respond to some of the statements made by Mr Murdoch. The CEPU may be a large organisation, but coal is not predominantly one of our - it's not the only industry that we're involved in. There are a limited number of officials who have carriage for that industry, who could brief someone in the Supreme Court. I'm one of those people; Mr Williams is another one of those people. Mr Williams is currently engaged in other matters, I know that for a fact. There are other officials of our union, but they are based in North Queensland and it's difficult for them to provide instructions to solicitors in the Supreme Court over the telephone.

PN575

I will required no doubt to attend that Supreme Court hearing. Unfortunately that would require me not being able to be here and present a case in reply to that made out by Mr Murdoch's clients. If the Commission pleases.

PN576

MISS NAJD: Commissioner, the applicant has indicated that the registered organisations were named as defendants in the injunctive proceedings that are listed for 2.30 in the Supreme Court. I take that to mean the registered organisations who are the respondents in this application. That wasn't clear. If it is the case that the AFMEPKIU has also been named, I would support the submissions that the CFMEU and CEPU in opposing - in seeking an adjournment of this matter, in order that I can take further instructions and ensure that the union is properly represented in both proceedings.

PN577

THE COMMISSIONER: I'm minded to not grant the adjournment, simply because I'm told by Mr Murdoch that the matter before the Supreme Court relates only to the activities engaged on the various picket lines, and at the moment I'm a bit with Mr Crawshaw: that I don't know that that's all that relevant to what it is that's before me. And so I do see them as if different issues, and I'm not sure that the Supreme Court's view of what's taken place in the picket line is going to be very persuasive or influence - or might influence me to have come to a different decision as to what I think should happen in relation to the bargaining period and whether or not the circumstances exist for its termination or suspension. So we'll resume at 2.30.

LUNCHEON ADJOURNMENT [1.28pm]

RESUMED [2.30pm]

PN578

THE COMMISSIONER: Mr Crawshaw, does that complete your evidence?

PN579

MR CRAWSHAW: Yes, Mr Commissioner.

PN580

THE COMMISSIONER: Very well. Thank you. Mr O'Sullivan? No evidence? Very well. Thank you. Mr Murdoch.

PN581

MR MURDOCH: Commissioner, might I hand up a written submission with chronology that relates to one aspect of the case, and in terms of dealing with the hearing in the most efficient way, if the Commission was minded to perhaps take a little while to break so that you could read the submission chronology, it will mean that I have very little if anything to say by way of supplementary submissions. I'd like you though to have had a chance to read it in case you've got any queries that I can deal with.

PN582

THE COMMISSIONER: Very well. I think that's not going to meet with much objection from the other side.

PN583

MR CRAWSHAW: No. At least we don't have to make an application and have accusations made that we're trying to delay proceedings.

PN584

THE COMMISSIONER: We'll resume at 10 to 3.

SHORT ADJOURNMENT [2.32pm]

RESUMED [2.50pm]

PN585

THE COMMISSIONER: Mr Murdoch.

PN586

MR MURDOCH: Commissioner, having regard to the nature of the relief that we seek I don't intend to make any further oral submissions but would ask you to take into account the matters that I raised in opening this morning to avoid me having to repeat them, and also the submissions which I made at various stages during the day concerning the urgency of the matter. So far as the chronology is concerned, we prepared that in relation to that aspect of our case which deals with the way in which the corporate attack on BHP was permitted to intrude into and then subsume the earlier enterprise bargaining process.

PN587

We note of course the evidence that Mr Vickers has given in relation to the opinion that he has that there was no such intrusion. We ask you to note a number of factors, though, that are clear on the evidence. At a critical time the national secretary, Mr Maher, distributed the material which advocated the broader based corporate attack and secondly it is clear that coinciding with that publication of material by the union there was a dramatic deterioration in the state of the negotiations which have been taking place.

PN588

What I mean by that is that in the space of some four weeks matters deteriorated like this: on 31 January this year Mr Vickers was prepared to make a recommendation for acceptance even though he had some reservations himself in relation to certain of the matters in the company's proposal. Yet within the space of a month when the mass meetings took place there was no recommendation and indeed the position as of this week is that Mr Vickers says that there is a wide gap between the parties. He also expressed it as being the parties are very wide apart.

PN589

So that there's a very powerful basis for inference that because of the coincidence between the deterioration in the state of negotiations with the intrusion of the national campaign agenda that there is indeed a linkage. We ask you particularly to note that the material distributed to the district officers and the lodges on 14 February came from the very highest level in the union, namely, the office of Mr Maher, a senior national official in the mining and energy division of the CFMEU.

PN590

Commissioner, the evidence in relation to the national campaign is primarily related to the CFMEU. However, you'll note that there was, on the evidence of Mr Vickers, cooperation at critical stages between the various unions and indeed the unions participated jointly in the meetings with delegates and employees over the past few weeks. Significantly there was, it appears, collaboration between the unions leading to the crucial step last Friday in respect of the notification of the commencement of stoppages. Those matters coincided. They were obviously coordinated. The unions were obviously acting in concert in that respect.

PN591

For all of those reasons, Commissioner, I'd submit that it is appropriate to issue an order based upon the template. Commissioner, we've made references through our submission to various authorities. I haven't rehashed those authorities. The purpose of giving the references and giving the cases was to point you to the authorities that we rely on for this approach. Finally, one minor matter, and that is in paragraph 65 of the written submission. That's at page 6. We refer to the 7 day strike at four mines. We don't of course neglect the fact that the strike also affects Crinum, but administratively Crinum is linked with one of the other mines and we didn't specifically refer to it, but lest there be any doubt, the strike also involves Crinum.

PN592

Commissioner, there was the matter this morning where a query was raised by my learned friend in relation to paragraph 40 of Mr Gerard's affidavit. The question of the comparability of notices, and I indicated that we would produce the notices. I now do so.

PN593

MR CRAWSHAW: I take it my friend is reopening - seeks leave to reopen his case in the middle of his submissions.

PN594

MR MURDOCH: I gave an undertaking to the Commission that I'd produce them. I'm fulfilling that undertaking.

PN595

MR CRAWSHAW: The evidence is closed. I said I take it my friend is seeking to reopen his case in the middle of submissions.

PN596

MR MURDOCH: No, I'm not.

PN597

MR CRAWSHAW: Well, if he's not seeking to reopen the case, he can't tender evidence.

PN598

MR MURDOCH: That's ridiculous. Commissioner, I gave you an undertaking that I'd produce this material after we'd deal with that objection. That's all I'm doing.

PN599

THE COMMISSIONER: Is there anything contentious about these things. I've already got.

PN600

MR MURDOCH: Of course not.

PN601

MR CRAWSHAW: No, there's nothing contentious, but the fact is that my friend's evidence is closed. We've called our evidence after he closed his case, and the simple fact of the matter is that if he wants to tender the notices he's got to seek to reopen his case.

PN602

THE COMMISSIONER: You don't want them now, Mr Crawshaw?

PN603

MR CRAWSHAW: I don't want them. I never wanted them. I said that the appropriate way to prove what was in that paragraph was to tender the notices. I never asked that they be tendered.

PN604

THE COMMISSIONER: Well, I think the easiest way, Mr Murdoch, is if there's no contest about it is to leave them. I've seen them all before. I've got them in another file of the Commission. Was that the only material you were handing up?

PN605

MR MURDOCH: Yes, Commissioner.

PN606

THE COMMISSIONER: I'll just mark the chronology which will be BHP5 and the written submissions of BHP will be BHP6.

EXHIBIT #BHP5 CHRONOLOGY

EXHIBIT #BHP6 WRITTEN SUBMISSIONS OF BHP

PN607

MR CRAWSHAW: I take it in doing that, Mr Commissioner, you're treating BHP5 as a submission as well. I wouldn't want to have thought that we accepted my friend's version of events.

PN608

THE COMMISSIONER: I treated it as a submission, yes.

PN609

MR MURDOCH: And that's how it was intended, Commissioner, because it is drawn from the material in evidence.

PN610

THE COMMISSIONER: Mr Crawshaw.

PN611

MR CRAWSHAW: I'm somewhat confused by my friend's submissions because having read the written submission it appeared to us that my friend wasn't relying on Section 170MW, sub-section (3) because there's no mention of it. However, having given you this written submission my friend then asked you to have regard to his opening in which, on my recording of the case that was put, he said something about the company and community suffering a very substantial loss, and, indeed, in the application that was made the grounds included Section 170MW(3). Now, my submissions will be considerably shorter if I don't have to address Section 170MW(3) and I only have to address the conspiracy theory, if I can call it that, Section 170MW(2), so perhaps through you, Mr Commissioner, if we could just clarify what case we're answering here.

PN612

THE COMMISSIONER: Can we have that clarified, Mr Murdoch, please?

PN613

MR MURDOCH: Commissioner, I am pleased to be able to clarify it because I've addressed you on the basis that ultimately you have a discretion as to whether you grant us relief and I have emphasised that there is an urgency about the matter and insofar as the urgency, and the discretion is concerned, we submit that it is proper for you to have regard to the effect this is having on the company and the community. That, in my submission, is directly relevant to why you should exercise the powers that are available to you and why you should exercise them in a timely way. Now, we are able to rely on that in relation to the discretionary grounds and I take you to paragraph 29 of the submission where we do, in fact, refer to the matter of the impact, so there's nothing new about what I said orally. Further on page 5 at paragraph 54(a) again in dealing with the reasons for an interim order, the urgency, the need to do something, we've again referred to the economic impact, so the matter is not one where there's any ambiguity. I thought we'd been quite clear when we started as to what we're doing, what we're relying on in relation to making out a basis for you to move and then there's the aspect as to why you should move as an exercise of discretion and why you should move in a timely way.

PN614

We, of course, also foreshadow, as we've done, that there will need to be a substantive case run, and, as you see in the substantive application, sub-section (3) is a vital part of the grounds for the substantive application. For us to have run that case, in support of the suspension for a short period, we'd have been here for a considerably longer period because of the need for the greater number of witnesses to prove up, in a substantive way, the economic loss etcetera to the standard needed to use that to terminate a bargaining period, so, Commissioner, the substantive case on sub-section (3) you'll hear later. So far as the present is concerned the jurisdictional triggers are to be found in sub-section (2), however, I repeat, the economic impact, the community impact, is relevant at this stage in respect of why you should act, why you should suspend, why you should do so in a timely way, and there's precedent for that, in our submission, in the approach that Munro J took in the AIG case which we've referred to on a number of occasions and where the Commission did act, in a timely way, to suspend as a bridging means to deal with the circumstances that confronted the Commission.

PN615

MR CRAWSHAW: I think we got the answer eventually. What started off as a case based on 170MW(3) and 170MW(2) is now only a case based on 170MW(2).

PN616

MR MURDOCH: Well, Commissioner, that's not right. It's a submission that has no merit at all.

PN617

MR CRAWSHAW: Well, I must say after I heard the opening this morning, after I heard my learned friend say, you've got the grounds in the application and after calling Mr Gerard to say there'd been significant damage, or to opine that there'd been significant damage to the Central Queensland economy, one would have been forgiven for thinking that they were only a Section 170MW(3) case, but, in any event, they're not running now, so I don't have to take you through that whole Hunter Valley litigation and the various other cases under 170MW(3) that I've spent lunch time having photocopied and analysed. And what we say is this, that the reality is that they started off with that Section 170MW(3). Mr Gerard's evidence wasn't worth a cracker on that and we also say that Mr Gerard's evidence on that 170MW(2) point, the conspiracy theory, is not worth a cracker, and although they're staying with that 170MW(2) argument it should be dismissed out of hand and I'll come to why that should be the case in due course.

PN618

The first argument though that I want to put is that there's no power under the Act to make an interim order. Now, the Commission will be aware that the power to make interim awards or orders is to be found in Section 111(1)(b) of the Act and there it's provided that subject to this Act the Commissioner may, in relation to an industrial dispute, make an award or order including one by consent of the parties in relation to all, or any, of the matters in dispute including, and (ii) is an interim award or order. Now, that's the powers in relation to an industrial dispute. The proceeding that's before you is not an industrial dispute. However, one also has to have regard to Section 111, sub-section (2) which provides that unless the context otherwise requires a reference in this section to an industrial dispute includes a reference to any other proceeding before the Commission, and so unless the context of Section 170MW otherwise requires, Section 111(1)(b) will be applicable to this proceeding because we accept it's a proceeding.

PN619

However, it's not an arbitral proceeding and that much is clear and is made clear by a decision of a Full Bench of this Commission in Coal and Allied, or two Full Benches actually, in Coal and Allied v CFMEU. Can I, firstly, hand to you a copy of a decision at Print 6323? That was the case where Boulton J was hearing proceedings ironically enough to consider whether the bargaining period should be terminated or suspended and the company, the Coal and Allied, sought to have him disqualified from hearing the matter pursuant to the provisions of section 105 of the Act which are applicable to a member of the Commission having conciliated the matter and then arbitrating it. You will see at page 5 of the decision that that argument did not succeed because the Full Bench came to the conclusion that Boulton J, in exercising powers under section 170MW, was not exercising arbitration powers as that term is used in section 105 and accordingly that section 105 had no application to the circumstances before his Honour. Having regard to this conclusion there is no need for us to determine the other issues in the appeal.

PN620

Now, that's relevant to this case. Well, perhaps before I say any more I should also hand to you the decision of the Full Bench in the termination and bargaining period that went to the High Court. It's reported in (1998) 80 IR 14 and so the photocopying wasn't completely wasted dealing with that case because it does go to this point as well. If your Honour goes to the - I think it's page 28 of that decision you will see that the President deal with the same point that was repeated. Mr Commissioner, you may recall there were two attempts to terminate the bargaining period or two cases on it. The first one was the first decision I handed up.

PN621

Coal and Allied repeated their submission about his Honour disqualifying himself in the second case and also took that matter as part of the appeal and that was the area where they failed because this Full Bench followed the earlier Full Bench in saying it wasn't an arbitral proceeding of course and then went on to overturn Boulton Js decision other grounds which then had that tortured legal history through the Federal Court and into the High Court. Now, section 170MW is found in part 6B of the Act and part 6B of the Act of course deals with negotiations for certified agreements.

PN622

It's not dealing with arbitral matters except insofar as a bargaining period is terminated on certain grounds in which case a section 170MX arbitration can occur and it's of interest in relation to that that where there is arbitral power exercised under section 170MX in part 6B that the legislature has found it necessary in section 170MY to say that the Commission has the conciliation and arbitration powers in relation to the matters mentioned in subsections 170MX(2) and (3) that it would have had under part 6 in relation to the matters that applied to conciliation and arbitration in relation to the matters instead of in relation to industrial disputes.

PN623

So there may be an argument arising out of that that the only time the powers in part 6 in which section 111(1) is part, that the only time it applies to 6B is under section 170MX arbitration where the legislatures specifically address that issue. But we don't have to go that far. Our argument is even if section 111(1) applies generally to section 170MX it's clear from the context of section 170MW, and you will recall those words were used in section 111(2), the context, it's clear from that context that section 170MW is not amenable to making interim orders. The fact of the matter is that 111(1)(b) provides for the making of interim orders in relation to the matters in dispute.

PN624

There are no matters in dispute in section 170MW. What you have before you is a non arbitral matter where you in effect decide an administrative matter as to whether the circumstances are made out in section 170MW(2) to (7) and if so whether you should exercise your discretion. It's not arbitrating contending matters in dispute and it's not arbitrating in the sense of describing what should be an award for the future, it's deciding whether now the terminating bargaining period should terminate. It may have impact on what occurs in the future but it's not - the order that's made does not in itself prescribe the conditions of employment as an award does for the future. And so even if section 111 does apply we would submit section 111(1)(b) does not apply.

PN625

The other reason we say that when we're looking at context is that section 111 - sorry, section 170MW itself not only provides for termination but also for suspension and if one is going to do something on a short term basis the remedy is already there. There is a provision for suspension so why would you, in addition, have an interim basis for suspension? The context clearly requires otherwise in this case. The advantage that is sought by applicants in arguing that there is an interim order is that they seek to have a lesser standard of proof apply and it's clear in a case such as this where the proof is non existent that the applicant would seek any advantage it could and so that's why they apply for not only a suspension but an interim suspension.

PN626

Now, my friend will no doubt rely on Munro Js decisions. It appears to us from examining his Honour's cases that there's been no actually decision on the point we've been arguing. In the cases my learned friend handed up earlier is contained at tab 2 the decision to make the interim order in the AIG case and at paragraph 4, on the third line, his Honour says - do you have that, Mr Commissioner?

PN627

THE COMMISSIONER: Yes, I do.

PN628

MR CRAWSHAW: "I note the reservation expressed by Mr Bornstein about the power to make an interim order and the dependence of any order on my satisfaction as to one of the circumstances in sub-section 170MW(2) or (3) relied upon the AIG". And that's the extent of it. Now, it would appear that all that was made in that case was a reservation without the matter being fully explored because I would have expected in his usual way that if Munro J had had an argument put before him as to whether there was jurisdiction that he would have dealt with it in a cogent manner.

PN629

It appears all that happened there was that there was a reservation expressed and the matter taken no further. And similarly in the next case, tab 3, my quick reading of the case appears to bear out the same proposition that the matter of jurisdiction was not raised. But we certainly fairly and squarely raise the question in this case on the basis that I've just argued. Perhaps as an alternate submission to that can I just address generally why you should - even if there was power why you should not exercise that power in this case. I firstly put that - and when I'm talking about the power I'm talking about the power to make an interim order rather than the power to make a suspension order which we acknowledge exists.

PN630

I'm really talking about the standard of proof here. We acknowledge that you could in these proceedings make a suspension order exercising the normal standard of proof not some lesser standard that the applicant would urge on you. Why you shouldn't make an interim order in this case is because - number one because that power of suspension exists anyway. It's not like the case where you've got the Commission having power to make an award or even an order under, for example, section 118A, demarcation orders and people coming along and saying, "well, we need something short of the making of the full award or the full order to bide us over".

PN631

Here you've got a specific power short of termination, namely suspension to bide you over. The other point is this, that there's not the same urgency attaches to section 170MW applications as attaches to, for example, 127 applications where in section 127 the Commission is asked - - -

PN632

THE COMMISSIONER: As soon as practicable, I think it is.

PN633

MR CRAWSHAW: Yes, I just wanted to get my words right.

PN634

THE COMMISSIONER: I'm reasonably familiar with section 127.

PN635

MR CRAWSHAW: Yes. I just wanted to get my words right. But there's nothing like that in section 170MW. And similarly although the words don't appear in section 166A the 72 hour period and the Commission having to take all steps to try and stop the action are all - - -

PN636

THE COMMISSIONER: I think it says immediate steps.

PN637

MR CRAWSHAW: Immediate.

PN638

THE COMMISSIONER: I've become familiar with that too.

PN639

MR CRAWSHAW: Yes, you're more familiar than me but they are all words that bring about a mandate on the Commission to act quickly. There's no such wording in section 170MW and one can see from some of the cases that they've taken a very long time. The other matter is this, that if you're being asked to apply some lesser standard of proof on an interlocutory basis it really does become a balance of consideration type test. And I suppose this is an alternate argument, if you are going to get into that area because you have jurisdiction or because you're prepared to exercise that jurisdiction to make - well, I suppose hear an application for an interim order and apply the lesser standard of proof you should apply the traditional tests that are applied by Courts when they are hearing interlocutory applications.

PN640

And in relation to that can we hand to you the decision of North J in the case of Australian Paper Limited v CEPU 81 IR 15. And can I take you to page 23 of that report where his Honour dealt with a balance of convenience. This was a case where industrial action was being taken where a section 127 order had been obtained and the employer went off to the Federal Court to get an injunction under section 127 sub-section 6 of the Act to, as it were, enforce the order. And if I could take you to the last full paragraph on page 23 his Honour said this about the balance of convenience. He said:

PN641

In considering the balance of convenience a strong factor in favour of the grant ...(reads)... The loss from the delay -

PN642

Perhaps I won't keep reading that. That's one side of the equation and you've heard about that side of the equation from my learned friend. But you didn't hear about the other side of the equation which is what his Honour then deals with in the next paragraph. He says:

PN643

Furthermore the suffering of loss and damage and other discretionary considerations ...(reads)... have arisen in an industrial law context.

PN644

His Honour then says:

PN645

This approach is correct so far as it goes but it does not go far enough ...(reads)... discretion of the Court ought in all cases to be regulated.

PN646

And then the quote goes on. And then his Honour said:

PN647

By reason of these recurring features of industrial disputes ...(reads)... before intervening in the relationship between industrial parties.

PN648

And just stopping there, Mr Commissioner, in earlier days one could have distinguished that passage on the basis, well, that might be all right for Courts but not - it's a different matter with the Commission, but of course as the passage itself points out the scheme of this Act, particularly in relation to the matter that is currently at issue between the parties, the negotiation of the certified agreement, provides for a minimal role for the Commission.

PN649

Then His Honour goes on:

PN650

The second feature is related to the first. Often, an interim injunction to restrain industrial action is sought ...(reads)... further the interests of the applicant.

PN651

Now, we note in this case that Mr Gerard gave clear evidence that the only reason that this application has been brought is because of the industrial action being taken. The conspiracy theory about the unions that is the sole basis for this application now didn't lead to an application prior to the industrial action being taken; it was only when the industrial action was taken that we got this application and it is clearly, in our submission, a matter that falls within the sort of case that North J identifies where the application has been brought for a tactical advantage.

PN652

He goes on to say, in the fifth line on page 25:

PN653

However, if the Court is persuaded that an injunction is sought primarily for tactical reasons ...(reads)... will be seen to be partisan -

PN654

and the judgment goes on. I would commend the Commission reading up to the end of the first paragraph on page 27, but I don't want to take up the Commission's time just continuing to read from that very erudite judgment.

PN655

So when it comes to exercising any discretion - and I suppose our whole submission about the interim orders doesn't arise unless the discretion also arises - it only arises really if there is a sufficient case under section 170MW(2), and perhaps I will come to that question now because we say, irrespective of whether you apply the normal standard of proof that the Commission is used to applying, or the lesser standard that my friend urges in his written submission - I think he calls it the prima facie standard, paragraph 64, he says:

PN656

Given the lower standard of evidentiary proof required to sustain an application for interim relief -

PN657

we say whichever standard you apply, that the applicant hasn't made out a case.

PN658

The fact of the matter is that there is just no evidence to sustain the proposition that section 170MW(2) is satisfied. The submission that is put is the product, one must say, of a fertile if not a paranoid imagination. There is no evidence of any person anywhere, any document anywhere, making the conspiratorial connection between the protected industrial action that has been taken, between the bargaining periods that are in place, and some ACTU corporate campaign or broader agenda against BHP. There is not a skerrick of evidence, not a skerrick of express evidence.

PN659

My friend's case is a case that is based on saying there is industrial action taking place on the one hand, and there is - the union is caught up on this corporate campaign on the other and saying, well, there must be a connection between the two. I mean, one of the documents, he says, surfaced at the same time as these negotiations didn't succeed. I mean, given the history of these negotiations which is quite long, given the history of union problems with BHP which is now getting quite long, one could make that submission at any time during the last year. One can always say, well, there was a coincidence of timing. It is all inferential.

PN660

What is more important is this in relation to that inferential case, that there is direct evidence to the contrary - clear, unequivocal evidence by Mr Vickers to the contrary. He got into the witness box and said that the unions insofar as they had been dealing with the applicant in relation to the bargaining periods that you have been asked to terminate and the protected industrial action that has been taken pursuant to those bargaining periods had no regard whatsoever to any broader agenda, to any corporate campaign. He couldn't have put it any more clearly, and the mode of cross-examination was not to take Mr Vickers on. Never was it put clearly in cross-examination that he was lying. The contrary proposition wasn't put.

PN661

What we had was my learned friend - really, the case - it was the same with cross-examining Mr Vickers as it is in the submission - putting up the snide inference that there was a connection. His questions implied that there was something fishy going on. It wasn't squarely put. In terms of the rule in Browne v Dunn, that wasn't satisfied. No doubt the reason it wasn't squarely put was that the cross-examiner knew what the answer would be, namely, a clear rebuttal by Mr Vickers.

PN662

What the applicant would have you believe is that there is a conspiracy not only between the three unions and the ACTU - and presumably all the other unions mentioned in the ACTU circular - not only between them, but also between, in each union, the national officials, the state officials, the delegates and the rank and file because you will recall Mr Vickers' evidence that he went and addressed all these meetings that endorsed the protected industrial action and there was never any mention of this broader agenda or corporate campaign - didn't have anything to do with it.

PN663

What the applicant would have you believe is that there is this huge conspiracy there, because to implement the conspiracy, you would need all those people to be involved, all those elements of the unions to be involved. And it just doesn't stack up. Mr Vickers is the officer of the CFMEU that has carriage of the matter. As I said, he denied the connection, and in quite clear terms. And the only way - and so, the only evidence on this issue is Mr Vickers' evidence. What my friend would seek to put against Mr Vickers' evidence, which was clear and unchallenged, is these snide inferences. Well, it just doesn't stack. Their case falls because the only express evidence is Mr Vickers.

PN664

And what they would have you find, and it's what you have to find to grant this application, is that you should not only accept those inferences, not only accept them, but also to find that Mr Vickers lied in the witness-box. That's what you've got to do, as well as to find that there's this conspiracy between all the elements in all the unions. That's what you've got to do to grant this application, no matter what the standard of proof. Even at a prima facie level you'd have to find that Mr Vickers went into that witness-box and lied. And there's no basis for doing that in the documents that my friend seeks to rely on to draw the inference, and there's no basis for doing that in the cross-examination because he emerged completely unscathed from that cross-examination, such as it was.

PN665

Now, if I could go then to the written submissions and simply say this. Paragraph 22:

PN666

This was an unexpected turn-around. It was more than coincidental that this change of heart ...(reads)... to the district officers and BHP lodges.

PN667

Never suggested to Mr Vickers; that was never suggested to him. Neither was paragraph 23 ever suggested to him. We have the opening that raised this suggestion. We have Mr Gerard's evidence tendering the documents. Mr Gerard, although he gave his opinion on other things, didn't give an opinion on this matter. I suppose, to his credit. But in between that and the final submission, despite Mr Vickers going to the witness-box this wasn't put to him. In addition at paragraph 37, it's - to bolster this submission it's suggested that the non-compliance with the Commission's recommendation is relevant to section 170MW(2) because it robbed Monday's conciliation of any real - realistic prospect of achieving a negotiated settlement.

PN668

Well, number 1, that's not the test. The test is whether the unions were genuinely - had genuinely tried to reach an agreement, or are currently trying to reach an agreement. But in any event it suggests that because industrial action is taken that it detracts from the genuineness of a party to the negotiations in seeking agreement. Whereas we put the contrary, that - - -

PN669

THE COMMISSIONER: Do you think that's the point of it? Isn't it more that they - it suggests that the failure by the unions to follow the strong recommendation demonstrates those things, as opposed to the taking of the industrial action. It's a fact that there was a recommendation that they not give intention to take the action and the bad faith, if I can use that term - - -

PN670

MR CRAWSHAW: Well, one can't assume because people don't follow the Commission's recommendations - well, bad faith is not - I know - - -

PN671

THE COMMISSIONER: Well, I didn't use it in the strict sense.

PN672

MR CRAWSHAW: I know, but - well, really, we - the danger comes if one starts trying to use words other than those that are in the section, and that's what - that's what has been used in this submission. The question is whether a failure to abide by the Commission's recommendation amounts to the union abandoning the genuineness of their desire to reach an agreement. And it so happens that the aspect of the recommendation that it wasn't followed was the taking of the industrial action. So one can't divorce that from - that action from what happened. That's why I'm addressing that particular matter.

PN673

THE COMMISSIONER: The only reason I'm a little pedantic about this, Mr Crawshaw, is that the mere taking of the industrial action is not indicative of a lack of desire to reach the agreement. That's so by virtue of the very scheme of the legislation. It's the failure not to give notice of intention to take industrial action that is said to be indicative because, had the industrial action been given - had the notices been given Monday afternoon, I assume we'd still be here today, but that point might not be being raised as a reason why there's a lack of intention to reach an agreement.

PN674

MR CRAWSHAW: We might have been here a little later - - -

PN675

THE COMMISSIONER: Correct.

PN676

MR CRAWSHAW: - - - because one of the reasons - although on its face the legislation talks about three days as a result of the Federal Court case that I was unfortunately on the losing end in - - -

PN677

THE COMMISSIONER: I've read it.

PN678

MR CRAWSHAW: - - - another Curragh case, so one needs a little longer these days. It wasn't - Mr Vickers wasn't taxed on that issue, as to why he went from Friday till Monday, but one could speculate that it was to allow time to run. I mean, that's the normal reason for giving notice, that one allows time to run. But I can't put that that was the reason because there's just simply no evidence either way and therefore, although I can't say that, it can't be said to the contrary that the union was - or the unions were lacking genuineness in a situation - in that situation.

PN679

The other point I should make in relation to trying to bring this into section 170MW(2) is that section 170MW(2)(d) specifically addresses when failure to comply with a recommendation of the Commission can be the grounds for termination. And that's when it's a recommendation of the Commission under section 111AA. And it would - it's our submission that in a situation where the legislatures expressly addressed when the circumstances of a failure to abide by the Commission - by a Commission recommendation would amount - would be sufficient to terminate the bargaining period; that it's not open under a more general heading to argue that a failure to comply with the recommendation should lead to the termination of the bargaining period.

PN680

I also in that regard refer to section 170MW(6), but it's not - it's talking about directions, awards or orders, as distinct from recommendations. And the reason why section 111AA takes on that more serious consequence, or takes on that consequence is because under section 111AA the parties agree to have the Commission make that recommendation, whereas I take it in this particular case there was no such agreement, otherwise no doubt the applicant would be relying on sub-subsection (d).

PN681

Then if I could go to paragraphs 38 and 39, once again it's really a repetition of the same proposition. Once again, they weren't put to Mr Vickers. I should also point out that paragraph 50 - I don't know that there's that much made of this in the submission, but it's said from the commencement of the strike on Wednesday morning the unions had taken out contractors and employees at the mines. It rather has the hallmarks of an American gangster movie, but the fact is that the evidence - there was evidence from Mr Gerard on very much a hearsay basis that certain contractors weren't going in but there was little evidence of people being taken out in the sense that - a pejorative sense that it's suggested here.

PN682

And in any event the evidence such as it was seemed to go to picketing which seems to be off the agenda now, dealt with in another place. The other thing I should say before leaving the written submissions of the applicant is paragraph 54 suggests that there are advantages not only to the company, but also to the unions or the respondents to an interim order application being heard. It says the unions get an adequate opportunity to mount a case against the applications brought by the company for the termination of the bargaining periods. We're quite happy to deal with the case that's being put. We're not happy to be here because we think it's a waste of time and indeed so low is the evidence that it really falls within the category of Section 347 of the Act. It's a case brought without reasonable cause and should attract a costs order, and we'd ask you to reserve on that question.

PN683

So we're quite happy to deal with it. We're not running away from any case they want to bring, subject to that qualification I make that it's really a waste of our time and the Commission's time. And it's the company that wants to only put the fragile evidence, if I can call it that - no criticism of him, of course - of Mr Gerard before the Commission, and we've dealt with that, and we'll deal with anything else they want to put up in the future. So there's no balance there for the unions. There's no advantage for us. The advantage is to have this lower standard of proof, but I've already addressed that question.

PN684

Can I just take your Honour to a couple of decisions on this Section 170MW(2) ground? The first is another decision in the Coal and Allied litigation. It's in 75 IR 110. This was an earlier application in that particular dispute where the employer sought to terminate the bargaining period. It was later that the New South Wales government and then the union sought to terminate the bargaining period under Section 170MW(3). This was an earlier application by the companies to terminate the bargaining period under Section 170MW(2). Pages 114 and 115 deal with the application pursuant to 2(a) and 2(b).

PN685

There's also an application under 2(c) which is not relevant for the purpose of this case, and his Honour said this under the 2(a) and 2(b) heading:

PN686

The main submission put by the company ...(reads)... and therefore are not genuinely trying to reach an agreement.

PN687

Sounds very familiar to this case. It was also put that the demands made by the unions regarding AWAs are contrary to the Act and so unreasonable it is clear that the unions are no longer genuinely trying to reach an agreement. His Honour says:

PN688

I have carefully considered the evidence presented ...(reads)... still seeking to reach an agreement with the company.

PN689

Once again, on all fours with this case. The company's argument for the termination of the bargaining period is largely based upon the contention that the current industrial action is about an extraneous issue or for an ulterior purpose, namely, the offer of alternative working arrangements. However, the evidence does not support such a contention. Both the resolution of the mass meeting of workers held on 4 June 1997 and the other evidence in submissions before the Commission is supportive of the conclusion that the current industrial action is being taken in an endeavour to advance the union's positions in the negotiations and to achieve an agreement at the mine. Once again, on all fours with this case.

PN690

The negotiations for a collective agreement has been proceeding for some time but with little progress being made. It is clear that the negotiations have proved difficult for both the company and the unions. This is not surprising. There are significant differences between the parties to be addressed and resolved through the negotiating process. The company is seeking to achieve efficiencies and flexibilities in the operation of the mine to make changes to working arrangements and the unions are seeking to protect and improve the existing conditions of their members. As part of their negotiating strategy and in order to put pressure upon the company in the negotiations, the workers at the mine, through their unions, have decided to take protected industrial action.

PN691

The taking of such action is contemplated within the bargaining framework of the Act. The industrial action which has been taken is damaging to the company and to the workers involved and this must, of course, be a matter of serious concern. However, the taking of industrial action does not of itself constitute a reason for the termination or suspension of a bargaining period under Section 170MW(2) of the Act and the mere taking of such action does not evidence a lack of genuineness by one party in the bargaining process or in pursuit of an agreement acceptable to it.

PN692

And once again I say that's very similar to the facts of this case. A further reason for rejecting the company's contention is that in any event it is doubtful that the issue about alternative working arrangements is extraneous to the negotiations. Perhaps that's a point of divergence in this case because the evidence, as I said, is that it is extraneous in this case. But his Honour went on in that case to say even if that was an issue it didn't detract from genuineness.

PN693

One more case I might hand up to your Honour. It's a much shorter case. It's print T0922. It's a case of Pacific Waste Management and if I can just go to paragraph 7. His Honour said:

PN694

I have considered all that has been put in relation to section 170MW(2) and I am not satisfied that the circumstance referred to in that subsection has ...(reads)... I cannot conclude that there is no genuine attempt by the TWU to reach the agreement.

PN695

And I probably should have touched on this after reading Boulton Js decision. You will recall there that the history was that they'd been making some reasonable progress and then it appeared to come to a full stop. What my friend sought to make out when there was a similar history in this case was that it was all due to some extraneous factor. I mean, that quite often happens in negotiations.

PN696

If negotiations aren't succeeding it often is that the history is that the parties get so far and then come to certain stumbling blocks on both sides. Maybe sometimes just one side but it usually takes two to tango, as it were, or two to fight. But the fact that there has been a stumbling block doesn't give rise to any inference that there is no genuineness. I should also deal with Munro Js decision on the merits in the AIG case. That was at tab 2 in my friend's folder and I've already taken you to this, Mr Commissioner, in paragraph 4 on this point that the interim power, as it were, wasn't really argued.

PN697

Paragraph 5 and 6 deal with his Honour's rejection of section 170MW(3)(a) and (b) but his Honour did, as my friend has told you, make an order on the basis that section 170MW(2) was satisfied but the material there was entirely of a different nature to what is put here. You see at paragraphs 9 and 10 that his Honour - this is on page 5 - says:

PN698

The AIG material contained substantive assertions reinforced by the signatures of a company officer in many instances that there have either been no negotiations or only one or two meetings about achieving agreement to ...(reads)... is satisfied.

PN699

And he goes on:

PN700

I have, in the course of argument, pointed out the basis upon which I can be satisfied has a measure of provisionality about it, indeed a somewhat arbitrary measure of assessment -

PN701

and I think that might have been quoted earlier by my friend. And he says:

PN702

The reason for doing so is it is almost transparent that given that this is an across the board claim one or two meetings to achieve all that the unions are so insistent upon is a rather abbreviated way to seek to negotiate an ...(reads)... from the unions.

PN703

Now, the difference in this case is number 1, the - and I've already put submissions as to why you shouldn't adopt this prima facie standard, but assuming you do, number 1 the difference is that there wasn't the long history of meetings that there have been in this case in which there was in the Hunter Valley case that Boulton J decided, quite the contrary. Number 2, any inference arising from there only being one or two meetings in an industry wide campaign or no more than one or two meetings or in some cases no negotiations at all, as his Honour points out.

PN704

Any inference about genuineness that could arise in that situation is not rebutted by any contradictory evidence as his Honour points out at the bottom of paragraph 10 in the absence of fairly readily available contradictory material from the union. But in this case you not only have the fairly readily contradictory material from Mr Vickers but contradictory material that stood the test and in all those circumstances, even if you applied the lesser standard, the case for the applicant fails completely. The only other matter I wanted to address is the back door attempt to bring in the section 170MW(3) grounds.

PN705

The applicant, obviously not being able to satisfy section 170MW(3), as any application on the evidence, has sought to use Mr Gerard's evidence as a back door way of running that case and my learned friend said you had a discretion to use it. Well, firstly, it must be remembered that discretion would only arise if section 170MW(2) is satisfied and it's clearly not but in any event, the evidence of Mr Gerard is extremely flimsy on any damage to either BHP or the central Queensland economy and I don't need to take you through the Hunter Valley litigation. Mr Commissioner, you've probably seen those decisions before but in essence what happened was Boulton J terminated the bargaining period under section 170MW(3).

PN706

The Full Bench overturned that and in particular the President in overturning it said, "Look, you've got to have hard economic evidence. You can't just come along with this wishy washy evidence about knock on effects and opinions from people that part of the economy might be affected" and that eventually found favour in the High Court. Now, what you have in this case is through the back door, that test not being satisfied, the applicant trying to use it for discretionary grounds under section 170MW(1) presumably should section 170MW(2) be satisfied and we would submit the same comments about the lack of cogency of the evidence would apply to it being used under section 170MW(1) for discretionary grounds as would apply for them being used under section 170MW(3) for the satisfaction ground.

PN707

I think I've given your Honour the judgment of the Full Bench. Perhaps for completeness to get rid of all the paper in any event if I could hand the original judgment of Boulton J in the High Court judgment to you. They are my submissions, Mr Commissioner.

PN708

THE COMMISSIONER: Thank you, Mr Crawshaw. Mr O'Sullivan.

PN709

MR O'SULLIVAN: Thank you, Mr Commissioner. I'll be relatively brief. As a starting point, the CEPU adopts and supports a submission of the CFMEU. I make these further extra submissions as regards to in particular the case attempted to be made out by the applicant pursuant to section 170MW(2) insofar as it deals with the CEPU. The totality of the case answered by the applicant against the CEPU is summed up - actually the only place you can see it in any sense at all at point 44 of their written submissions which is there is a very strong inference that the CEPU is also a participant in a corporate campaign against the company because of the involvement of that union in the steel and iron ore industry and as an ACTU affiliate.

PN710

So essentially the grounds being made out by the applicant is that the CEPU by being an ACTU affiliate and having membership in the iron ore and the steel industry is part of this corporate campaign. So, in some sense, this conspiracy theory which is to put another term I think that the CFMEU would be the CIA agents who grabbed Harold Holt from the beach; the AMWU piloted the submarine which whisked him away; the CEPU somehow had some docking facilities for this submarine to whisk Harold Holt away. There is no direct evidence in any sense that links the CEPU to any corporate campaign has been presented by the applicant.

PN711

Indeed, if you're to have a look at annexure GWG9, the affidavit of Mr Gregory William Gerard, exhibit BHP3; the only evidence there, Mr Commissioner, which is correct is that there was an ACTU meeting on 16 February 2001; that's quite clear with the actual ACTU urgent facsimile notice of meeting. There is an inference drawn from the letter of Mr Maher to district officials of BHP lodges that the issue of a corporate campaign could be on the agenda. One would presume that it was on the agenda, but there is no actual evidence itself of what was the outcome of that meeting.

PN712

So the actual underpinning of this conspiracy theory about a corporate campaign has never been made out in the evidence before you, Mr Commissioner. And it's on that fundamental basis that we say that the rights of the CEPU to bargain in pursuance of the rights made out under the Act should not be removed through this application being used by the applicant in some tactical sense to further their objects in pursuit of an outcome in an enterprise agreement. If the Commission pleases.

PN713

THE COMMISSIONER: Thank you, Mr O'Sullivan. Ms Nadj.

PN714

MS NADJ: Yes, thank you, Commissioner, and I too will confine my submissions to those aspects of the evidence that relate to my union in particular. In all other respects as the submissions made by counsel for the CFMEU relate to my union, I would adopt and support those submissions. It seems - I'll be brief in my submission because really I do think that the case as it's specific against the AMWU is quite remarkably thin on the ground. There are two aspects of the evidence that have - the applicant has sought to rely on in making out its claim - seeking to make out a claim pursuant to section 170MW; the two are A and B factors.

PN715

And I would submit that there's not only evidence to establish a prima facie case, but no case indeed in relation to the absence of any genuine attempts to negotiate. The first issue that was raised when Mr Murdoch questioned Mr Vickers was really in the matter of collaboration as between the unions which resulted in notices of intention to take protected action. And there was some inference that the fact that these were produced in some sort of substantially similar form was perhaps indicative of something that although it wasn't stated clearly for the Commission, but that it may have been improper or somehow sinister in its intent.

PN716

I will just point out that, indeed, there was no evidence. No evidence has been put of any sort of improper conduct on the part of our union, and in fact as has been said in conciliation and in the proceedings before the Commission in similar matters, it's clear that those notices were filed in order to afford the quite legitimate protection that the Act can afford to the action taken by our members at the two mines where they - where we have members. According to the applicant's own material, members of our organisation were quite significantly involved in negotiations of the so called template agreement. Dave Harrison and Mr Peter Lees were members subsequently of that negotiating team.

PN717

And according to Mr Vickers' own evidence, the state officials who couldn't make it to the mass meetings that were held when proposals were discussed sent their apologies. And I would point out to the Commission also on the applicant's own evidence that our members number in the single figures across these mines and there is - again there can be no inference of improper or untoward conduct or anything less than conduct that this is a genuine attempt to negotiate an agreement that can arise out of the evidence of the applicant.

PN718

The final point that hasn't been touched on really, but was appended to the affidavit of Mr Gerard was the letter sent by Mr Oliver to Greg Combet of the ACTU and really I don't want to go into much detail about that. The submissions made by the CFMEU in relation to the lack of causation that - well, the failure to make out any kind of causal link as between the ACTU campaign and the industrial action that's been taken at the moment that those same submissions apply in this instance. And you'll note at the final paragraph of that letter - in fact, the purpose of the letter is to request that the ACTU convene a meeting in accordance with resolutions that were carried at a previous meeting.

PN719

In my submission, no evidence did - this cannot constitute evidence either to establish a prima facie case of some sort of absence of a genuine attempt to negotiate before taking action. And, indeed, we've had no evidence of the absence of genuine attempt to negotiate to resolve this matter now pursuant to (b) of 170MW and those are my submissions.

PN720

THE COMMISSIONER: Very well. Thank you, Ms Nadj. Mr Murdoch.

PN721

MR MURDOCH: I'll be brief. The point taken about jurisdiction is one that in my submission should not trouble the Commission. The cases relied upon by my learned friend, the two Coal and Allied cases 1997, 1998 vintage. They of course pre-date the two decisions of Munro J that we've supplied you with. In my submission in both of those Munro J appears to have come very firmly to the view that there is a basis for the use of the section 170MW powers on an interim basis insofar as suspension is concerned.

PN722

Now, he states - that is Munro J - that there is a basis for that to be found in the cross-references to the Commission's general powers and, in my submission, that is entirely appropriate because section 111(2) expressly enlarges the Commission's general powers under section 111(1) to any other proceedings before the Commission. The only fetter on that is unless the context otherwise requires. There was nothing in the submissions of my learned friend that sets us a contextual barrier.

PN723

Commissioner, further to that, it is manifest from the fact that section 170MW provides for both suspension and termination, that the legislature had in mind providing the Commission with great flexibility in this area, and it is abundantly clear that where one furnishes a tribunal with the power to suspend, that that manifests an intention to empower the tribunal with the ability to make short-term or long-term orders suspending a particular provision pending some later event or events. Now, the Commission should not, in my submission, get caught up in labels. There is a very sound basis in the Munro decisions and in section 111(1)(g)(ii) for saying, yes, interim powers are available.

PN724

But even apart from that, the very fact that there is the power to suspend for any period makes it, in my submission, manifest that parliament intended that you should have the capacity to suspend, for whatever period you want, and for whatever reason, that you need to address, provided that you have a basis established under section 170MW(2) in this instance. So, Commissioner - - -

PN725

MR CRAWSHAW: We are not disputing that.

PN726

MR MURDOCH: Thank you. So to sum up on that, yes, the interim power is available but, in the alternative, even if it is not, the fact that suspension is available enables you to make orders in the nature of an interim order by means of suspension pending the ultimate hearing and determination of the termination application. Munro Js approach is the one that we ask you to follow and I would submit, Commission, that that is appropriate, given the emergent circumstances that you are in. This is not the time for the Commission to re-invent the wheel. You have recent authority from a respected Presidential Member of the Commission. I am not suggesting you are bound to follow this approach, but it is, in my submission, an appropriate precedent for you.

PN727

Commissioner, so far as the rest of the submissions in response are concerned, it appears that there is, on the part of the respondents - and I say this with the greatest of respect - an attempt to take the good old head-in-the-sand approach in that they said very little in relation to the point which we emphasise in our case, and that is the conduct arising out of the failure to comply with the Commission's strong recommendations made the Thursday preceding the day on which the notices of intention to take industrial action were instituted.

PN728

Commissioner, we address this in our written submission, and you have already noted paragraph 37, so I don't want to re-argue it. But I would make this point: there was a flavour running through the submissions of the various respondents that once upon a time in the past we genuinely negotiated with BHP in relation to the issue of replacement certified agreements.

PN729

That, in my submission, takes a simplistic and an erroneous view of the requirements of 170MW(2)(a) and (b) because there is past tense and present tense. Note, for example, under (b) "is not genuinely trying". So it doesn't matter that there might have been some genuine attempts in the past. The focus here is what went on late last week when the Commission, as we have referred to and as we have presented the evidence, presented the parties with a fresh opportunity, a fresh opportunity to genuinely try to reach an agreement, and not only did the Commission give the opportunity for that to happen on Monday of this week under the Commission's assistance, but the Commission set up a framework for that to happen.

PN730

Now, I will say it for the fifth time, but very quickly. Our client complied. What did the three unions do? With a remarkable coincidence in timing, approach, words and everything else, they knocked it back. That is why we submit they robbed that process of any chance that it had of getting a realistic, genuine, negotiated outcome. They undermined it. they sabotaged it, because Mr Vickers had it in his head that it would go nowhere. He didn't think it would work, so he didn't want to even try.

PN731

Now, what better evidence do we want? The only union witness that got in the box said he didn't think it would work, therefore we will go ahead, we will not comply with the Commission's strong recommendation. In other words, their view was Monday was a dead duck so there was no point in any genuine attempt to go through the Commission process.

PN732

So no matter how much they want to try to put their heads in the sand, no matter how much they want to talk rubbish about conspiracy theories and silly business about Harold Holt, when it comes to fact they can't escape what they did, the reasons they did it and the fact that that conduct fits precisely section 170MW(2)(b). So that, in my submission, this is the clearest possible case that one could have to make out the section.

PN733

I have dealt already with the matters of discretion as to why the Commission should deal with it. Commissioner, the somewhat offensive reference to back door methods of getting an argument up should be treated with the contempt they so richly deserve. We've been upfront in the way we have presented this case; there is nothing back door about it, and we have said to you, those matter that go to the loss being suffered by our client, by the community, are relevant to whether or not you exercise your discretion and whether or not you exercise it in a timely way.

PN734

Just in terms of tidying up, in the North decision that you've been provided with, North Js decision in the AMP case, you might notice as a matter of interest at paragraph - sorry, page 23 about a third of the way down the page the passage that starts:

PN735

This is particularly so because the Act provides a mechanism by which the Commission can determine whether proposed action should continue -

PN736

Etcetera, etcetera. And it goes on for about another 12 or 15 lines. It's somewhat ironic that in that case one of the reasons why relief was refused by the Court was that the applicant party hadn't taken advantage of the avenue available under section 170MW.

PN737

THE COMMISSIONER: Did you say it was on page 23, Mr Murdoch?

PN738

MR MURDOCH: Yes. Yes, that's in the AMP case in the right-hand - yes, page 23 in the North decision.

PN739

THE COMMISSIONER: Yes. Whereabouts does it start?

PN740

MR MURDOCH: About a third of the way down. It's not a separate paragraph but it starts:

PN741

This is particularly so because the Act provides a mechanism by which the Commission can determine -

PN742

THE COMMISSIONER: Thank you.

PN743

MR MURDOCH: And runs down to the foot of that paragraph. And your Honour we point out, of course, that his Honour was dealing there with a particular matter and the primary matter before his Honour was not a section 170MW matter. And one ought, in our submission, look to the test in section 170MW, as we have done, to see whether your jurisdiction is enlivened, as it is, and then becomes the issue as to whether you should exercise your discretion, etcetera. Nothing further, Commissioner.

PN744

THE COMMISSIONER: Very well, thank you, Mr Murdoch. I will reserve my decision in this matter. I just want to thank the parties for the detailed material they have provided to me to assist me. Whilst I have you all here is there any point in looking to deal with some programming of the substantive applications? Is it convenient to do that?

PN745

MR MURDOCH: It is for us, Commissioner.

PN746

MR CRAWSHAW: Well, we say this should be the substantive application. That's our first point and I think my friend, on an alternate basis, put that you should - if you don't consider it on an interim basis you should consider it under the suspension basis. So if it's treated on that basis it would really be incorrect to call - to make a distinction between an interim and a substantive basis. But I suppose it might be said that in any event there will be an application to terminate.

PN747

MR MURDOCH: Well, there is one and we want it listed please, Commissioner.

PN748

MR CRAWSHAW: Subject to those qualifications - - -

PN749

THE COMMISSIONER: Well, I mean, there is no doubt that there is an application to terminate.

PN750

MR CRAWSHAW: Yes.

PN751

THE COMMISSIONER: And we will have to deal with that at some stage irrespective of what's the outcome of this proceeding.

PN752

MR CRAWSHAW: Yes. The one difficulty I have with that is that number one I don't have the instructions to appear in any subsequent matter. Number two, the two main people that were instructing me, Mr Vickers and Mr Slevin, are off at the Supreme Court.

PN753

THE COMMISSIONER: I understand your difficulty in that event, Mr Crawshaw. All I was trying to do was trying to set dates, and I understand the urgency of all of this, but set dates that would be convenient to the parties. In the absence of my ability to do that then I will simply list the matters and issue directions and if the directions aren't satisfactory then the parties can talk about them and try and reach some agreed directions between them - seek to amend them by agreement.

PN754

MR CRAWSHAW: Well, I'm not sure that that's the preferable alternative given the present state of affairs but - - -

PN755

THE COMMISSIONER: Well, either that then - - -

PN756

MR CRAWSHAW: - - - if your Honour - if you can give us an idea, Mr Commissioner when you might list it. The difficulty is my friend is talking about putting on 10 or 12 statements and he hasn't given an exact date as to when they will be available.

PN757

THE COMMISSIONER: I accept that you're going to need time to see those statements before you can decide.

PN758

MR CRAWSHAW: The other thing, given the way this case has developed, is that we think there should be some contentions supplied at the same time as the evidence because - I don't want to harp back to what I said this morning but the application itself has no particulars of the grounds and one would like to know before one went any further with any other case whether all the - both sub-sections are being pursued and what is the basis for that.

PN759

THE COMMISSIONER: Well - - -

PN760

MR CRAWSHAW: And it would also tend to shorten the matter one would have thought.

PN761

THE COMMISSIONER: What I will do then is I'll simply issue directions, list the matters and issue directions but the directions will require the parties to provide before the hearing to each other at appropriate times witness statements and outlines of submissions.

PN762

MR CRAWSHAW: I probably should say that just based on general experience one would have - I would expect my client would need at least 10 days to reply to 10 to 12 statements, so if the Commission could take that into account.

PN763

THE COMMISSIONER: Very well, thank you.

PN764

MR MURDOCH: Commissioner, accepting what my learned friend says in relation to his not having instructions but being sensible about this and anticipating that it's not like the CFMEU to change horses in mid-stream there would be a reasonable anticipation of his involvement. It might have assisted the parties if - I notice you had your diary out, Commissioner. If we could have at least looked while everyone is here at a program.

PN765

If my learned friend is not instructed and some other counsel has and he has difficulty with it, well, perhaps it could be revisited. But taking a sensible view of matters it's much easier when parties are assembled like this to look at arrangements than to do it by remote.

PN766

MR CRAWSHAW: Well, I accept that. I haven't got my diary with me at the moment. I've got something in my head.

PN767

THE COMMISSIONER: Mr Murdoch, when are you able to provide witness statements to the unions?

PN768

MR MURDOCH: By close of business this coming Wednesday, Commissioner.

PN769

THE COMMISSIONER: So that will be outline of submissions as well as the witness statements.

PN770

MR MURDOCH: Yes.

PN771

MR CRAWSHAW: Based on what I said before we would probably need until the Monday week, whatever that might be, after that Wednesday.

PN772

THE COMMISSIONER: The 19th.

PN773

MR CRAWSHAW: 19 March.

PN774

THE COMMISSIONER: So if you have your witness statements - - -

PN775

MR CRAWSHAW: I'm sorry.

PN776

THE COMMISSIONER: If you can provide your witness statements and outline of submissions by close of business Monday the 19th. Is that acceptable to the other unions?

PN777

MR O'SULLIVAN: No, Mr Commissioner. Unfortunately I'm caught up in a Federal Court matter early next week and I'm also in the process of concluding my appointed position at the CEPU on 23 March and someone is filling in on the 14th. I'd see that - even though it seems like a quite point that - you're talking about Monday the 19th. Usually these things obviously go two full calendar weeks so it should at least be 21 March - opportunity for those witness statements in reply.

PN778

MISS NADJ: Perhaps the issue can be resolved as between the other parties.

PN779

THE COMMISSIONER: You're not going to call each of your members, Miss Nadj?

PN780

MISS NADJ: Not this time, Commissioner.

PN781

THE COMMISSIONER: Well, I think the 19th for the unions to file and serve their material is sufficient. That leaves us with hearing the week 26 March - from 26 March for the hearing.

PN782

MR CRAWSHAW: I would have thought if there's 10 or 12 statements that one day wouldn't be enough.

PN783

THE COMMISSIONER: No, I said the week, I'm sorry.

PN784

MR CRAWSHAW: The week.

PN785

THE COMMISSIONER: I wish, Mr Crawshaw. No, I meant the full week; that I would keep aside the full week. I mean, if we finish it earlier that's fine, if we don't that's fine too.

PN786

MR CRAWSHAW: I'm in a bit of an invidious position because I can't presume, despite what my friend says, that - - -

PN787

MR MURDOCH: Mr Barker is behind you. He's very influential in the union.

PN788

MR CRAWSHAW: But in any event I cannot - I cannot definitively say I'll be available. If the Commission would give me five minutes I could ring and I could probably speak to Mr Barker as my learned friend suggests and then I can be more definitive as to whether that's - well, whether I'm in it and whether all those dates - that whole week is available. I might have to, if I was in it, do a bit of rearranging. Accepting my friend's point that it's better doing these things when we're all here, if the Commission could give me - it's too late. I couldn't find out anyway. It's a different time in Sydney.

PN789

THE COMMISSIONER: Well, what I'll do is at list the matter for that week and if there's any difficulties we'll work our way through them. I don't think there's much else we can do. And I must say, Mr Murdoch, as far as your client goes, I'm operating on the basis that it wants - and I would like an answer to this question - that it wants these matters dealt with before the applications to terminate the agreements.

PN790

MR MURDOCH: I'll get instructions on that when we're having the break, Commissioner.

PN791

THE COMMISSIONER: Very well. Thank you. But we're not having a break, are we?

PN792

MR MURDOCH: Sorry. I thought my learned friend wanted a - - -

PN793

THE COMMISSIONER: We abandoned that idea.

PN794

MR MURDOCH: No. Okay. Well, I'll need a break to find that out.

PN795

THE COMMISSIONER: Well, if your client has a different view, perhaps you could write to me and tell me what that is, but I'm operating on the basis that these applications get priority over the applications to terminate the agreements.

PN796

MR MURDOCH: Thank you, Commissioner.

PN797

THE COMMISSIONER: Unless there's anything further, I'll adjourn the Commission. I would indicate that - I won't indicate anything. I'm really not sure when we'll be in a position to give you a decision in the matter, but it is likely a decision will issue with written reasons to follow as soon as I can after that. I adjourn the Commission.

ADJOURNED INDEFINITELY [4.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #BHP1 DRAFT ORDER PN12
EXHIBIT #BHP2 LETTER DATED 27/02/2001 PN17
GREGORY WILLIAM GERARD, SWORN PN56
EXAMINATION-IN-CHIEF BY MR MURDOCH PN56
EXHIBIT #BHP3 AFFIDAVIT OF GREGORY WILLIAM GERARD PN60
RESUMED [11.15am]
RE-EXAMINATION BY MR MURDOCH PN360
WITNESS WITHDREW PN367
EXHIBIT #BHP4 ACTU NEWS RELEASE DATED 15/02/2001 PN371
ANDREW WILLIAM VICKERS, AFFIRMED PN374
EXAMINATION-IN-CHIEF BY MR CRAWSHAW PN374
CROSS-EXAMINATION BY MR MURDOCH PN392
RE-EXAMINATION BY MR CRAWSHAW PN529
FURTHER EXAMINATION BY MR MURDOCH PN544
WITNESS WITHDREW PN551
EXHIBIT #BHP5 CHRONOLOGY PN607
EXHIBIT #BHP6 WRITTEN SUBMISSIONS OF BHP PN607